Public opinion: barrier to death penalty abolition?

Global Prison Trends 2022 details progress and setbacks towards abolition of the death penalty over the past year. In the second expert blog of our series examining trends identified in the report, Mai Sato, Director of Eleos Justice at Monash University, considers the role of public opinion as a barrier to abolition and dispells common objections.

‘Public opinion’ is one of the commonly cited barriers to death penalty abolition, limiting the capacity of states to exercise leadership on this matter. The following statements answer frequently raised objections to abolition, centring on public opinion.

‘Support for the death penalty is high in my country.’

Public opposition to abolition is frequently cited without much or any empirical evidence. Policy makers feel the need to retain the death penalty because they have a ‘sense’ that it is central to public trust in justice, but a gut feeling is not the same as empirical evidence. Policy makers often want to appear tough on crime because they believe that is what the public want. We know from research that the public have a high interest in crime but are also uninformed and misinformed about their own criminal justice system. This dynamic – penal populism – has continued to legitimise the death penalty.

‘Our latest poll shows majority public support for the death penalty.’

There are many ad-hoc polls conducted on death penalty attitudes. In some cases, the results show a very high level of support, which could be interpreted as evidence that the public is not yet ready for abolition. However, there are several factors to take into account before treating the results as valid. The results may vary significantly depending on:

• the timing of the poll (Was the poll conducted after a widely reported heinous crime, when public mood was especially punitive?);
• the question asked (How was the question phrased? Was it a binary or a Likert-scale question?); and
• the quality of the sample (What was the methodology? Was it a representative sample?).

A survey based on sound social science methods can capture opinion accurately and serve as a social barometer to inform policy decision-making. It is important to remember, however, that while these surveys are a powerful tool in capturing opinion, they are also a crude instrument that ignores nuances and complexities of opinion. As the infographic shows, asking a binary – ‘yes/no’ – question will provide the policy maker with the apparent proportions of people who are for or against the proposed policy.

But beneath these neat figures are opinions which cannot simply be captured in a ‘yes’ or a ‘no’. We may assume that retentionists and abolitionists are far apart in their attitudes, but in fact what divides them – and what it means to be a ‘retentionist’ and an ‘abolitionist’ – is much more subtle than we might expect. Thus the results of a survey should not be automatically considered to provide clear and conclusive directions for public policy.

‘We must reflect public opinion in a democratic country.’

Abolitionists question the relevance of public opinion and argue that polls showing strong support for retention can be ignored because, historically, countries that have abolished the death penalty did so through judicial or political leadership. But it could be argued that in countries where abolition was achieved by the ‘elites’ without resistance from the public, the people were actually ready to accept abolition. After all, for a justice system to function properly, policies and legislation must command popular support. Any legislation forced onto the public – no matter how well-intended by policy makers – will not be truly effective. Furthermore, in a democracy public support for official policy is important as a matter of principle.

It should also be borne in mind that while polls (assuming the results can be trusted) may show strong public preference for the death penalty, the public may still consider abolition as legitimate. Asking whether one wants to keep the death penalty simply measures public preference for retention, but it does not reveal how important the death penalty is to the public, and more importantly what (if any) consequences may follow from abolition.

‘How can we be responsive to popular opinion while avoiding unacceptable populism when considering abolition?’

If a state is thinking of moving away from the death penalty, but worries about the reactions from the public, it is sensible to measure possible adverse reactions to abolition. If a survey is to be used for this purpose, questions should focus less on whether the public likes or prefers the death penalty. Rather, the survey should ask retentionists why the death penalty is important to them, and examine possible consequences that could follow from abolition. These might include, for example, erosion of public perceptions of the legitimacy of the criminal justice system, resulting in non-compliance with the law, lack of cooperation with the criminal justice system, and even vigilantism.

Where retention is central to population trust in the criminal justice system, and abolition would result in the erosion of political and judicial legitimacy, a state might be said to be on dangerous ground in proceeding to abolition. But, how often does this apply? So far, there is growing evidence from research in states that retain the death penalty to suggest that the legitimacy of the justice system does not hinge on retention of the death penalty, and that public attitudes show enough flexibility to embrace abolition (see examples from Japan; Zimbabwe; China; Malaysia).

‘The death penalty is enshrined in our history and culture.’

A country’s support for the death penalty may seem deep-rooted in its culture and history. A state that retains the death penalty may look to Europe and argue that a death penalty-free EU was possible because of their unique ‘European’ culture or history. History and culture are indeed key in understanding a country’s current penal policy.

However, it is important to acknowledge that attitudes change over time. What many of our histories have in common is that in the past we used to treat people much more harshly and less humanely. While slavery still exists today – such as in the form of human trafficking – it is no longer lawful. But for much of our history, what we now consider barbaric was practiced, accepted and institutionalised. Criminal punishments have also changed. States no longer use burning or mutilating body parts to punish offenders. We look back at these outdated punishments bewildered that they formed part of a legitimate justice system.

Attitudes and cultures are not static, and just because the death penalty may have a long history – or seem embedded in culture – it does not mean it will or should stay.