Faculty of law blogs / UNIVERSITY OF OXFORD

Crude opinion polls on the death penalty distort public debate


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Hard cases, it has been said, make bad law. They often also trigger ill-informed public debate, derived from data of dubious provenance. This is never more apparent than in the aftermath of a particularly heinous – and, therefore, exceptional – offence. The trial of Lucy Letby, the Chester nurse who was sentenced this week to a whole life term without the possibility of parole for murdering seven babies and attempting to kill another six, illustrates this proposition perfectly. The crimes of which she has been convicted were of the utmost seriousness, and necessarily attracted the most severe punishment available to UK courts. For some, however, this was apparently insufficient.

According to the Daily Telegraph, ‘many commentators’, including its own staff columnist, Tim Stanley, have questioned whether Letby’s whole life tariff was an adequate punishment. Mr Stanley professed himself to be opposed to restoring capital punishment, on the grounds he abhorred all forms of violence. However, he also maintained that after it was abolished in 1965, ‘crime went up’ because ‘predators' had exploited this more liberal environment. He also described his personal response to the outcome of Letby’s trial: ‘Hang her, shoot her or fry her. Just get her off my planet.’

Accompanying his article online was the crudest of opinion surveys. The paper mentioned, in passing, that YouGov polls from 2019 to 2022 have consistently shown waning support, always below 40%, for the reintroduction of capital punishment for murder. However, by using the entirely unscientific method of asking readers to click a ‘yes’ or ‘no’ in answer to the question ‘are you in favour of bringing back the death penalty?’, the Telegraph concluded that 52% of them were – and reported this as if it were something of significance.

The Telegraph, of course, is a Conservative, right-wing paper, so readers who took the trouble to respond were more likely to cleave to right-wing views. Ignoring such methodological defects, it followed up its ‘poll’ with a further article featuring selective quotations from some of those who responded. This piece was peppered with misleading statements, such as a claim that when abolition was enacted in 1965, the public were told that a life sentence would always mean the whole of the prisoner’s natural life – when in fact, the first whole life tariff was not imposed on anyone for many years. Some readers quoted by the paper did express concern over the possibility of lethal miscarriages of justice. But the overall message was harsh. In the words of one reader, the death penalty was ‘the ultimate act of justice and yes, retribution, and it should be applied to child killers’.

Such arguments have not been much aired in Britain for many years, and it is a potentially dangerous time for them to resurge. Lee Anderson, the Deputy Chairman of the Conservative Party, has already said he wants to bring back hanging – apparently in a populist effort to restore the Tories’ appeal in the traditionally Labour ‘red wall’ constituencies they won in 2019, but now seem in danger of losing. The restoration of the death penalty will not figure in the next Tory election manifesto. But if the concept is re-legitimised, and widely discussed in mainstream media, there is, I suggest, a risk that it might do in the more distant future.

A death sentence being passed in an English court in 1912
A death sentence being passed in an English court in 1912. Source: Wikimedia Commons.

There are, or course, many strong arguments abolitionists would be able to make if the re-introduction of capital punishment in the UK were to start to look like a real possibility. Having spent years researching wrongful convictions, it’s clear to me that they are an almost ineradicable aspect of the British criminal process, as shown by the recent exoneration of Andrew Malkinson, who spent 17 years in prison for a rape he did not commit – despite the fact that the law enforcement authorities had been aware of exculpatory DNA evidence not heard at his trial for 14 of them. Needless to say, this phenomenon is not unique to Britain. It is omnipresent in all jurisdictions, and there is a vast body of research that demonstrates that any state that retains the death penalty also retains the risk it may sponsor the gravest form of error that any criminal justice system could inflict – the wrongful imposition of an irrevocable punishment.

However, the issue I want to focus on here is different  the risk that superficial research, conducted by spurious and unreliable methods, may come to influence not only public debate, but unscrupulous, uninformed and unreflective politicians. 

Take the question asked by the Telegraph alongside Tim Stanley’s article. For obvious reasons, it cannot possibly generate data on which anyone could rely. Yet this is not the only source for renewed claims that in the wake of the Letby case, public opinion is turning back towards support for capital punishment. Of more concern is an article published by the Spectator on 24 August by its diary columnist, Steerpike. This cites an opinion survey conducted by Redfield and Wilton Strategies that purports to show that of a sample of 1,500 people, 66% were in favour of applying the death penalty for crimes such as Letby’s. The magazine fails to supply any detail of the survey’s methods, and, rather strangely, neither does the Redfield and Wilton Strategies website. This matters. Superficial opinion research tells us almost nothing, and for that reason, can be extremely unhelpful – even though it may make a substantial impact.

On the other hand, rigorous empirical research which meticulously interrogates public opinion, relying on properly representative samples and using questions that place capital punishment in its broader context, often reveals that retentionists’ claims that they have majority public support are questionable, or even totally false. Surveys that go beyond the simple binary question as to whether or not respondents support the death penalty are likely to foster a much more nuanced picture.

Over the past fourteen years, The Death Penalty Project has worked with local academics and civil society organisations to conduct opinion research in various jurisdictions across Asia, the Caribbean and Africa. I have joined in this work in Kenya, Zimbabwe, Taiwan and Indonesia. The overriding message from these disparate jurisdictions is that retentionists’ insistence that capital punishment enjoys widespread support are often overstated, and that both policy-making elites and the wider public are, when confronted with the realities and weaknesses of the criminal process, deeply uneasy about the idea that the state should be empowered to end a human life. Moreover, such research also shows that even in retentionist states, there is generally little engagement with the issue, and even less knowledge of the punishment and its administration.

Another assumption which often underpins support for the death penalty is the belief that death sentences and executions have a deterrent effect. We have learnt that presenting retentionists with the considerable body of empirical research evidence that challenges this claim significantly reduces support for the death penalty. The record of real, individual cases, and of the likelihood that those sentenced to death will come from the most disadvantaged backgrounds, be poorly represented, and suffer from a range of problems such as substance abuse and mental ill-health, has a similar effect. Providing survey respondents with scenarios that supply context about an offender’s mitigating circumstances tends to produce much lower rates of support for capital punishment.

In-depth surveys, based on developed methodologies, can also assist in understanding respondents’ views about the effectiveness of capital punishment when compared with alternative harsh penalties, such as life without the possibility of parole. Overall, we have learnt that there is an enormous gap between the results produced by crude, binary polls and more nuanced surveys.

Drawing on the superficial polls produced in the media in the past week, Tim Stanley argues that ‘a state without the death penalty resembles a lion tamer without a whip’. Preposterous as this analogy is, it is also dangerous and unhelpful. And, it cannot be stated too emphatically, there is simply no evidence that a methodologically sophisticated study in the UK would support the claim that such a view is widespread – even during a period of heightened emotion around child murders.

Stanley and others seem to suggest that if politicians were to support it, the reintroduction of the death penalty in the UK might be extremely popular. In fact, the available evidence shows that wherever capital punishment is abolished and is no longer legitimated by the state, public support for it begins to wither away, as the definition of the most severe available punishment changes. Countries that abolish capital punishment almost never restore it. The Philippines did reinstate it for a short while between 1994 and 2006, but then abolished again. In part, this is a function of countries agreeing to be bound by international laws that make abolition legally irrevocable, but it also reflects the fact that jurisdictions get used to alternative penalties, and, pace Tim Stanley, come to realise that abolition does not cause the rate of serious crimes to increase. Indeed, in many countries abolition has been followed by a declining crime rate.

When the death penalty is abolished, more and more citizens come to regard it as a punishment of the past. In the UK, surveys have shown that continued support for capital punishment fell from 74% in 1986 to 65% in 1996, then to 50% in 2007. It  finally dropped below 50% in 2014. Moreover, support for the death penalty is at its lowest in younger age groups.

Yet while at present there is no prospect that a mainstream UK political party will start to demand the restoration of capital punishment in Britain, this could change. We live in an era when the populist right has made huge inroads in countries as diverse as the USA, Hungary and Israel, and we should not be complacent that the same could not happen in Britain. For this reason, the Telegraph’s response to the Letby case must be challenged. Journalists sometimes say one should ‘never let the facts get in the way of a good story’. It is easy to see why the paper has chosen to generate clickbait by beating the drum for the death penalty in the wake of a nurse being convicted of mass infant murder. Equally, its suggestion that there is some new groundswell in favour of restoring the death penalty in the UK must be resisted. For now, there is no evidence to back this claim up. The danger, however, is that by stating that there is, and by implicitly encouraging the populist right to make this a ‘wedge’ campaign issue, this bogus assertion could one day become a self-fulfilling prophecy.