There is no place for death penalty in a modern society. Opponents, however, fall short when it comes to suggesting an alternative way to punish the deviants.

Every modern society has its paragons and protagonists. However, what distinguishes a truly enlightened society is not the way it treats its heros. What makes it exceptional is the way it mainstreams the marginalised. The methods using which it assimilates its minorities. And the modus vivendi through which it reforms and re-educates its misdemeanants, corrects its incorrigibles and integrates its deviants.

When it comes to handling deviants, the year 2014 has so far been eventful. It has seen a spate of executions in the U.S. as well as some progressive judgments on capital punishment by the Indian Supreme Court. While the U.S. executions reflected the country’s desperation to keep the practice of hangman’s justice alive, the Indian Supreme Court took itself to a new progressive high through judgments emphasising humaneness in the treatment of prisoners.

On observing the cases in the two democracies — one the world’s oldest democracy and the other the world’s biggest — the starkness that marks the deviation of the practised reality from the professed constitutional principles becomes visible.

To cite the most recent case in the U.S., we need to examine the most retributory of its States, Texas. On Wednesday, it executed Suzanne Basso (59), who was held guilty of gruesome murder of a mentally-disabled person, Louis Musso. The murder happened in 1998 and Basso was, no doubt, a changed person since then. She became only the fifth woman in Texas and the 14th overall in the country since 1976 to have been executed. The last execution, Texas’s 500th, happened a year ago, which I mentioned in an earlier blogpost. It was of an African-American woman, Kimberly McCarthy. The current count in Texas stands at 510.

Basso was executed using lethal injection, the ‘most acceptable’ execution method for many States in the U.S. In January, a shortage of the death drug, pentobarbital, had led the State of Louisiana to switch to an untested two-drug process for the execution of Dennis McGuire, who had been convicted of rape and murder nearly a quarter of a century ago. As a result, the agony of forced death was prolonged and the execution ‘completed’ only after 25 full minutes. Out of this, McGuire reportedly spent 15 minutes “gasping for air, writhing, and trying to sit up,” to quote this piece. In other words, he endured a gruesome state where his consciousness oscillated between life and death, wanting to be set free but clinging on to a needle, literally, not of hope but of despair.

A study by The Guardian of executions in Texas found that it takes, on an average, 20 minutes under the current method using pentobarbital, compared to the earlier method when it took half that time. In Louisiana, even that method couldn’t be followed leading to the State resorting to untested drugs.

Although 18 U.S. States have outlawed the death penalty, 32 States still retain it in theory. Texas, as I mentioned above, is the most retributory of them — with 510 executions since the death penalty was brought back in 1976 after a short moratorium.

In India, where death penalty is awarded under arbitrarily decided ‘rarest of rare cases’, the Supreme Court pronounced a landmark judgment on January 21. It commuted the death sentence of 15 convicts to life, apart from laying down rules that would have to be followed thenceforth in the treatment meted out to convicts on death row. This was after an inordinate delay of up to 12 years by successive Presidents in deciding on their mercy petitions. The SC must have considered the unethical manner in which India executed Afzal Guru last year.

What makes these two countries retain this relic of the medieval era when many other countries have outlawed it? Is it its perceived deterrent effect? Or is it the primal human desire for retribution?

Retribution vs. reformation

In 1754, Italian enlightenment scholar Cesare Beccaria (at the age of 26) published his first book Dei delitti e delle pene (An Essay on Crimes and Punishments).

Beccaria strongly held that the purpose of punishment should not be vengeance or retribution but the reformation of the criminal and prevention of future crimes. In other words, punishment should integrate the criminal rather than marginalise an already condemned one. Integration was something which, Beccaria felt, capital punishment failed to do.

He also believed that backwardness in the method of punishment was indicative of backwardness of the society in general. To quote him“countries notorious for the severity of punishments were also those in which the most bloody and inhuman actions . . . were committed”. This LRB piece gives an excellent analysis of the discrimination that categorises the award and execution of death penalty in the U.S. And it was written in 2000. The situation has not changed much since. Copy, modify and paste, and you’ll have a case study for capital punishment in India as well.

Advocates of abolishing capital punishment have been arguing tirelessly about the futility of having such barbaric practice in the 21st century lawbook. However, assuming that we outlaw it completely, we need to find alternative ways of punishing the concerned deviants. It is here that I feel many of us are on a weak wicket. We stop with demand for life imprisonment. But what will the convict do with his life in prison?

I had, somewhat wishfully, spoken of some possible alternatives here.

However, a recent example I studied surely points to the democratic maturity achieved by some of the EU nations. The example is of the way Norwegian criminal justice system and its society in general dealt with mass murderer Anders Behring Breivik.

Breivik’s case offers a perfect example for how modern democracies can handle cases of mass murderers.

Giving another opportunity

Having committed 77 murders on that fateful Saturday in July 2011, Breivik would have been certainly given the capital punishment if his crime had come under either Indian or American jurisdiction.

However, in Norway, the criminal justice works differently. He was convicted of murder, treated as a terrorist and sentenced to 21 years imprisonment, the maximum given by Norwegian jurisprudence. More than the final verdict, it is the way in which Norwegian judicial system handled his case and its society reacted to it that makes the case a trendsetting one.

First, the insanity claim — that Breivik was not in complete control of his conscience — was rejected. It helped that he himself wanted to be held responsible for his actions and be treated as a ‘hero’.

Second, by allowing him to remain a part of the society, though in a secluded corner, the court showed that Norwegian judicial system was above the primordial instincts of revenge and retribution.

As pointed out by the writer in this NYRB article, a lot of points outlined by Breivik in his manifesto are characteristic of the new European Far Right. His ‘principles’ are an extreme version of those represented by the likes of Robert Spender in the U.S.; Geert Wilders in the Netherlands; and Bat Ye’or in Britain. Similar to Breivik, they have are known for their strong anti-immigrant stance and for being against multiculturalism.

Besides being Islamophobic, Breivik was also totally pro-Israel. Even in that, he only followed principles already espoused by right-wing parties like English Defence League (EDL) in Britain; National Front in France; and Freedom Party in Austria, all having links with Israel’s ruling Likud and its alliance partner Yisrael Beiteinu, both of which support expansion of Israeli settlements in West Bank, an area Palestinians claim for a future nation-state of their own.

So the Breivik incident can be treated as an element of the whole Ultra-Right malaise that has seeped into European polity. Norwegian system treated it exactly that way, not necessarily for Breivik but for showing that its democracy was above the basal instinct of vengeance.

As this piece puts it, justice requires more than punishment. It requires closure, not in the retributive sense, but in the restorative sense.

The writer, Mark Vernon, from Birkbeck College, London, talks of Khmer Rouge's head of secret police, Comrade Duch. Responsible once for murdering 20,000 people, he was in a pathetic condition when photographer Nic Dunlop found him many years later. The photographer, out there to research for a book, felt not as much disgust as surprise. He subsequently came back, having found not justice but understanding.

Dunlop, who went on to write his experience in the form of a book, The Lost Executioner, concluded after observing Duch that “As long as he remains a human being… and that’s what I found, there is hope.”

About a year after being given the sentence, Anders Behring Breivik of Norway applied for a political science course in University of Oslo. There would have been a ‘trial by media’ had this happened in India or U.S. However, the university showed willingness to accommodate even a criminal. Ole Petter Ottersen, the rector of University of Oslo welcomed him to study, not from the campus but from prison. The rector reasoned it through this article.

Otterson was of the opinion that the course would give Breivik a chance to learn about the values of democracy, human rights and justice, all embedded in Norwegian system. It would give him another opportunity to become a better person while in prison.

As the rector puts it toward the end, “Having been admitted to study political science, Breivik will have to read about democracy and justice, and about how pluralism and respect for individual human rights, protection of minorities and fundamental freedoms have been instrumental for the historical development of modern Europe… in his cell he will be given ample possibilities to reflect on his atrocities and misconceptions.”

It is too early to say whether Breivik will be a better person 21 years later; whether he will show remorse at having killed innocent civilians; or even whether he’ll survive this arduous test of humanity Norwegian system has subjected him to. By giving him life imprisonment, Norway has put the ball back in his court. His fundamental right of right to life, though in a curtailed form, is still with him.

Perhaps, India and U.S. would do well to take cue from Norway’s example? It would do a world of good, not to the convicts, but to the nations.