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The Grim Reaper’s Dilemma

The Grim Reaper is in a state of puzzlement, as policymakers discuss if Capital Punishment is a sine qua non for the near utopian society they envision. Is Code Red the way to go to bring about reduced crime rates? Or is it wrong to bask in the glory of retribution, gleeful with our notion of justice being delivered?

There is a wave of change in thought and policies and a renewed consciousness among the governments and institutions, that has prompted over two-thirds of the countries in the world to abolish the death penalty for almost all crimes1. According to David Von Drehle, ‘the Death of the Death Penalty’2 is nigh and he argues that though the support for capital punishment has withered in the recent years, momentous judgements like the one of Dzhokhar Tsarnaev and the 2013 Boston Marathon Bloodbath in the US and in my opinion, even the Nirbhaya case in India, saw public’s attitude on death penalty shift quickly and in David’s words, “it remains strong in a situation like this, where the offence is so outrageous, the process so open, the defence so robust and guilt beyond dispute.”2

Why the need to continue?

According to Amnesty International, 142 countries in total have abolished the death penalty in either law or practice. But 56 countries still retain it, including India, USA, and China3. Why? This argument is two fold4; firstly, it is the choice of action opted by the society, which expects the law to reflect public opinion. Secondly, the cost of keeping a convict in a prison which respects human rights for an entire lifetime, is very high. Moreover, it won’t exactly amuse the taxpayers to see their hard-earned money being used to feed felons instead of a more noble cause.

The cases of Bachan Singh vs. The State of Punjab and the Mithu vs. The State of Punjab5, define what death penalty means in India. In the former case, the SC ruled that death penalty should only be applicable for the most heinous offences (“rarest of the rare”), suggesting that in India, the application of death penalty is highly restricted5. In Mithu vs. The State of Punjab, the SC ruled that death penalty is unconstitutional, and even though these two cases challenge each other, they more or less define India’s attitude towards the use of death penalty, an attitude of critical analysis and cumbersome trials stretching over years or maybe even decades6.

Is it high time we change?

The ruling of the Bachan Singh vs. The State of Punjab does not state what “rarest of the rare ” actually means7, thus, empowering courts to act arbitrarily. Moreover, court judgements are not foolproof; an innocent may be sentenced to death due to dearth of witnesses or good defence, an example is the case of Dr. Hawley Crippen8, who was executed in 1910 after an Old Bailey jury took just 27 minutes to declare him guilty of murdering his wife, Cora, who had vanished earlier that year. A hundred years later, DNA studies revealed that the corpse found in his cellar could not have been that of Cora. Dr. Crippen maintained until the end that he was innocent. If the accused is from a lower socio-economic background8, the legitimacy of the death sentence comes into question as his background may play against him. But these are only assumptions, about what may go wrong, but even if we study the on-ground reality, the statistics don’t please The Grim Reaper.

Thorsten Sellin’s9 comparisons about the homicide rates for the years from 1920 to 1958 in the United States concluded that the trends of homicide death rates of comparable states were not much different and that capital punishment had no apparent effect on homicide death rates, which are indicators of capital murder rates. In 1935 Robert Dann10 published an analysis of homicides in Philadelphia during 60 days before and 60 days after five highly publicized executions. Dann hypothesised that the deterrent effect of the executions should result in lower homicide rates but the results showed otherwise, as rates were higher than usual. In India, the amendment to the POCSO act hands out death penalty as the punishment for anyone convicted of raping a girl under the age of 1211. In the Nirbhaya case, the government announced that death penalty will be given to those convicted of rape resulting in death11. This contradicts the guidelines on which death penalty is applicable, as the legislation in case of Mithu vs. The State of Punjab declared that a mandatory death penalty was ‘unconstitutional’. A death penalty in cases of rape would also increase under-reporting, as most cases involve acquaintances as perpetrators12. Moreover, the victims would be exposed to threats and coercion to withdraw their complaint13 and such a punishment may also encourage the perpetrator to kill the victim in order to circumvent identification and thus, avoid being caught14. Furthermore, capital punishment has spiked the occurrence of crimes, rather than reducing it. In 196315, two plain-clothed Los Angeles police officers stopped a car because its license plate was not illuminated. Unaware of the reason for the stop, the men in the car, Jimmy Lee Smith and Gregory Powell assumed that they were being apprehended for a string of armed robberies they had committed. Thus, they disarmed and kidnapped the officers. When Smith learned the actual reason for the stop, he exclaimed, “Son of a . . . I didn’t want to get into this business, but now that I am in it I have got to go all the way.”Smith and Powell mistakenly thought that the kidnapping they had just committed was a capital offence and decided to eliminate the witnesses. They shot one of the officers to death, but the other escaped and lived to identify the killers, who were convicted and sentenced to death. Another factor that comes into play is the spatial distribution of law, as we can see in the US, where laws of adjacent states like Colorado (no death penalty) and Oklahoma (death penalty) can play a big role in criminal activities, and the accused can easily avoid the death penalty, thus rendering it of no use. 16

An eye for an eye and lo! Justice is served

Capital punishment may be the aptest tool for justice in the eyes of the society but is it practical? Recent studies suggest that capital punishment costs significantly more than life imprisonment. Amnesty International17 reported that a 2003 legislative audit in Kansas estimated the cost of a death penalty case to be 70% more than the cost of a comparable non-death penalty case. In California, the current system costs $137 million per year; it would cost $11.5 million for a system without the death penalty. Even in India, there were 371 prisoners on death row by the end of December 201718, with the oldest case dating back to more than two decades. Out of these only 4 have been executed, thus, the pro side’s claim that death penalty is cheaper than life imprisonment is frivolous, as the same taxpayers’ money is anyway being used for the prisoner’s needs, who are on the death row, waiting to be executed.

There’s no doubt that legal systems around the world are extremely faulty and people lacking in resources19 tend to fall through the cracks and in a system like that it’s innately unfair to have a punishment of such high degree, which is irrevocable. People are not scared of the death penalty, they are scared of being caught and that is the effective deterrent factor. Moreover, a punishment like this perpetuates a culture of revenge and vengeance, rather than focusing on reform and battling the core issues of sexism and racism. The enforcement of such a law is draconian as it focuses solely on the retributive role of punishments and not on the utilitarian aspect, which is undoubtedly more crucial for societal welfare in the long run. Furthermore, the sheer power of the court and the government to inflict death upon some of its citizens legitimizes the act and allows the state to quantify human life. This way state agencies like the CIA and the military, for example, feel entitled to measure the worth of a person in their terms, thereby aggravating the possibility of such a penalty turning into a biased and authoritarian act and them getting away with zero accountability.

There is no alternative to a death penalty, nor should we consider one. We as a society have glorified this punishment as the key to justice, but what we fail to realise is that a death penalty will not cure the underlying problems that such offences bring. The only alternative is to completely abolish Capital Punishment and change the focus from REVENGE to REFORM. This penalty merely serves as a tool for us, that helps us live in our bubble of justice. It subconsciously empowers us to dismiss the misogyny, the patriarchy, the casteism and other inequalities that exist. The truth is that we’re aware that we are mistaken, yet we are in denial.

By Gul Mathur

References:

1. https://www.amnesty.org/en/what-we-do/death-penalty/

2. https://time.com/deathpenalty/

3. https://www.amnesty.org/en/what-we-do/death-penalty/

4. http://medind.nic.in/iaa/t13/i3/iaat13i3p666.pdf

5. https://dpw.pointjupiter.co/country-search-post.cfm?country=India#f33-3

6. https://www.business-standard.com/article/current-affairs/371-indians-are-on-death-row-only-4-have-been-executed-in-13-years-118052800123_1.html

7. http://medind.nic.in/iaa/t13/i3/iaat13i3p666.pdf

8. https://www.theguardian.com/uk/2007/oct/17/ukcrime.science , http://medind.nic.in/iaa/t13/i3/iaat13i3p666.pdf , https://thewire.in/law/three-quarters-of-death-row-prisoners-are-from-lower-castes-or-religious-minorities , https://www.theatlantic.com/politics/archive/2014/06/race-and-the-death-penalty/373081/

9. https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1040&context=njlsp

10. https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1040&context=njlsp

11. https://www.bbc.com/news/world-asia-india-44922084

12. https://www.bbc.com/news/world-asia-india-44922084 , https://www.rainn.org/statistics/perpetrators-sexual-violence

13. https://www.bbc.com/news/world-asia-india-44922084,

14. iaat13i3p666.pdf

15.https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1040&context=njlsp

16.https://www.journals.uchicago.edu/doi/10.1086/367921

17. https://www.amnestyusa.org/issues/death-penalty/death-penalty-facts/death-penalty-cost/

18. 371 Indians are on death row; only 4 have been executed in 13 years | Business Standard News

19.https://thewire.in/law/three-quarters-of-death-row-prisoners-are-from-lower-castes-or-religious-minorities

https://www.theatlantic.com/politics/archive/2014/06/race-and-the-death-penalty/373081/

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