The indefensible statute

The time has come for a national debate on the death penalty, a punishment that is arbitrary and pointless

Updated - May 13, 2016 12:09 pm IST

Published - January 25, 2014 12:48 am IST

He’d been just 50 hours away from execution, the man the trial judge had called a “perverse shark” for shooting dead teenager Marilyn Green and her fiancé Jerry Hillard in cold blood one summer day in 1982. Except, Anthony Porter hadn’t killed them: drug-dealer and gangster he might have been, but he was no murderer. In 1998, students at Northwestern University reinvestigated Mr. Davis’ case as part of a project, securing a dramatic videotaped confession from the real killer. Investigators, it turned out, had never explored evidence on the perpetrator, Alstory Simon; Mr. Porter was arrested and charged after he visited the police station to clear his name.

“The fact that it took 12-and-a-half years and a movie to prove my innocence should scare the hell out of everyone in this room,” said Anthony Randall, who also spent years on death row for a murder he did not commit, “and, if it doesn’t, then that scares the hell out of me”.

Last week, the Supreme Court commuted the sentences of a woman and 14 men on death row, saying that long delays in ruling on their mercy petitions justified clemency. It laid down new procedures for handling the process of capital punishment. The court also mandated humane treatment — if that phrase has any meaning in this context — of prisoners of death row.

The judgment doesn’t, however, go far enough: it is time for Indians to understand the costs of capital punishment, and its utter uselessness as a means of deterring crime.

The pro-death crescendo: Ever since the hideous rape-murder of a Delhi woman in December 2012, there has been a crescendo in support of capital punishment: politicians, victims’ kin, and protesters in all applauded the death sentences handed out to the perpetrators last year. It isn’t hard, perhaps, to grasp the visceral rage which underpins these sentences. Gurmeet Singh wiped out his entire family, on the suspicion that his wife was having an affair. Maganlal Barela, whose sentence was commuted by the Supreme Court, beheaded his five daughters with an axe — sparing his sons. Sonia Choudhary and her husband, Sanjiv Choudhary, killed six — including infants aged four years two years, and just 45 days.

Judicial confusion

Part of the problem is also that Supreme Court hasn’t laid down consistent criteria for the death penalty. Rabindra Pal, who burned alive Graham Staines and his two infant sons, was given a life sentence after judges held that the missionary’s proselytising were a mitigating circumstance. Former judges like Ajit Shah have argued that the Supreme Court has applied inconsistent criteria in its delivery of the death sentence, and often erred in its understanding of precedent.

The judicial confusion masks a larger social problem: the absence of an informed public debate on capital punishment.

It is important, up front, to acknowledge that social science can’t settle this debate. The United States’ National Academy of Sciences concluded, in the most thoroughgoing meta-study to date, that there is no way to judge “whether capital punishment decreases, increases, or has no effect on homicide rates.” There are simple social-science research reasons for this: the sample sizes are inadequate, for example, and it’s obviously impossible to test two identical populations of criminals to see how their behaviours are impacted upon by varying kinds of sentencing.

Key among what science does tell us, though, is that there is no correlation between capital punishment and violent crime. Homicide rates in different States of the U.S., and in Canada, moved in lockstep — even as they experimented with very different death penalty regimes.

This much is clear: death sentences alone don’t deter murder.

It’s also important to rid ourselves of other preconceptions, like the idea that nations beset by crimes like terrorism necessarily need the death penalty. Israel hasn’t executed anyone since 1962, when it hanged the Nazi war criminal Adolf Eichmann. Its only other application of the sentence was in the case of Meir Tobianski, a soldier executed on treason charges in 1948. He was established, a year later, to have been innocent.

Each society has made very different kinds of choices on executions. Russia has a death penalty moratorium in place; Japan seems headed the other way. Though the global trend is against the death penalty — 58 countries retain it, against 140 which don’t — it’s still on the statute in most major nations, including China and the United States.

None of this, of course, settles the question whether the death penalty is just. In its study, the Academy of Sciences emphasised that data “should not influence policy judgments about capital punishment.”

Ethical questions Each of the at least 143 prisoners who have been released from death row in the U.S. since 1939, after fresh evidence emerged on their innocence — as well as at least 10 demonstrable cases of the execution of innocents — shows that the debate isn’t about social science abstractions. The tide of acquittals of prisoners on death row has swelled as genetic science improves, yielding evidence that convicts simply could not have committed the crimes they are charged with. This is, of course, in a criminal justice system far more robust and well-resourced than India’s.

In many cases, it would appear that there can be no reasonable doubt at all — among them, the Delhi rape-murder or Muhammad Ajmal Kasab’s murderous journey through Mumbai on 26/11.

Yet, we know almost no evidence is utterly unimpeachable — especially the evidence of our eyes, on which so many convictions are based. Forensic psychiatrists and psychologists have been telling us for years that our minds deceive us routinely. Experts Gary Wells and Elizabeth Olsen have, among others, shown that a welter of factors, from age and race to lighting conditions can lead to false results. They note that double-blind tests — the gold-standard in science — are unknown in eyewitness credibility studies.

Every kind of justice leaves open the prospect of a wrong being corrected — except the final verdict of the hangman.

It isn’t, of course, that the decision not to kill is without moral hazard. The harm caused to the rights of individuals by executing them, for example, must be weighed against the possible risk to innocent citizens if killers are released back into the population. No reasonable person, after all, would want his or her children to be at risk of a late-night encounter with the Delhi juvenile perpetrator who will be released in the not-distant future. There’s no reason, either, other than arbitrary value judgments, why vengeance is, a priori, a bad thing.

Few would doubt, either, that punishment ought to be proportional to the crime — in other words, that criminals should get what they deserve. Few, though, would also disagree that there’s no non-arbitrary norm to decide what a just-desert actually is. In some societies, it might seem that witches deserve to burned; in our cultures, this probably isn’t a view that will gain widespread acceptance.

However, all these reasons — frequently advocated in defence of capital punishment — are just as easily met by life sentences.

Put bluntly, the questions we ought to be asking ourselves are these: how do we decide that we should jail thieves, rather than cut off their hands; how do we decide we ought to hang people instead of burning them alive? How much suffering are we willing to inflict in seeking retribution? How far are we willing to accept harm to innocents in our quest for vengeance?

For centuries now, philosophers have debated these questions — as, indeed, they have the idea of punishment itself. In crude terms, there are two positions. There are consequentialists, who argue that punishment is justified by the ends it serves. Then, there’s the deontological view, which proposes that punishment must be seen as a good thing in itself, serving to foster our common allegiance to law.

The consequentialist argument was stated thus by the medieval philosopher Thomas Aquinas: “if any man is dangerous to the community and is subverting it by some sin, the treatment to be commended is his execution in order to preserve the common good”.

Mosheh ben Maimon, Aquinas’ near-contemporary, disagreed: to execute anyone on less than complete certainly of their guilt, he wrote, would reduce justice “to the judge's caprice.” That complete certainty he knew, as we know, to be an illusion.

Every judge, and every society, confronts ben Maimon’s dilemma. We have been sadly casual about this most important of choices — and that demeans us all.

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