The death penalty. Or ahem. how I learnt to love dispassionate debates.

Yes that was a badly executed Kubrick reference.

There is something that often happens whenever the death penalty comes to be discussed. Those against the death penalty will talk about the value of human life, and why we can not play God. Those in favor of it will mention that there was a person X who brutally murdered Y (usually a child). They will then go on into the gruesome details of the murder. Those listening will get extremely worked up. The person against the death penalty will shake their head dolefully, ashamed and chastised.

The implicit argument here is: how dare you suggest that THAT man/woman live!!

Now what this sort of a debate ignores is that the issue of the death penalty does not have much to do with THAT man. It is a bigger issue, involving nuanced ethical questions. The problem with introducing ‘THAT’ man into the equation, is that it clouds your judgment, as well as that of your listeners. 

The truth, that debates have to be dispassionate, dawned on me before I was a ‘grown-up’. I had decided, very early in life, that Saurav Ganguly (the Indian cricket player) shall never be criticized. I went on to enforce this by attacking those who criticized him, with all my might (verbally of course). What soon happened was that people stopped discussing the man with me. It is not that I had changed their mind. I had just cowed them into not bringing it up anymore. 

This is how we talk about most pressing issues of the day, whether it be the merits of a leader or the relevance of an ideology, and especially something like the death penalty. We take a stand, backed up by one shocking example and then fit the facts to match that stand. We do not leave any room for the possibility that we may be wrong.

But given that the death penalty is literally a life and death matter (yes, an example of where literally CAN be used), there needs to be a dispassionate discussion on it.

I am using this post to highlight certain issues that seem to be pertinent to me. I am not going to stick to strict legality, but am going to go into the ethics of the issue as well. I have tried to make this a post that both lawyers and non-lawyers can read, and I have also tried to build a sort of consensus with this post. Also this post is India centered. I have tried to make it easy for people from outside to follow by giving related links (usually wikipedia).

The most important issue with the death penalty is the possibility that innocent people may be hanged (or whatever form of punishment it is that your country practices, in India it is hanging).

In America we have the phenomenon of DNA exoneration (something that has shown that a small but significant number of innocent people were given the death penalty). 

Here is a video of Jon Oliver discussing the perspective from USA.

I highly recommend the video as it was one of the seeds for this post.

But! Some of you will exclaim. How relevant is that in India? We hang far fewer people here, and the threshold is the rarest of the rare case. Is it possible then, that an innocent man will get the punishment?

Let us examine the case of Mr Devinderpal Singh Bhullar, a man who is in most quarters believed to be a terrorist. He was sentenced to death due to his involvement in a bomb blast case.

So far so good?   No.

Interestingly the only evidence against Bhullar was a confession he ‘voluntarily’ made to police about his involvement in the bomb-blast, while he was being questioned on passport forgery. The dissenting judge, Justice M.B Shah, acquitted Bhullar on the ground that his conviction in the lower courts was based on one uncorroborated confession to the police (www.huffingtonpost.com/marcia-g-yerman/bhullar-case-india-human-rights_b_4582716.html)

Under Indian law, confessions to the police are not admissible as evidence. Of course the law Bhullar was convicted under was the Terrorist And Disruptive Activities Prevention Act which allowed placing reliance on such confessions.(http://en.wikipedia.org/wiki/Terrorist_and_Disruptive_Activities_%28Prevention%29_Act).

Mr Bhullar’s death sentence was finally commuted by the Supreme Court on the ground that there was an inordinate delay in executing it.(http://timesofindia.indiatimes.com/india/SC-commutes-Devinderpal-Singh-Bhullars-death-sentence-to-life-imprisonment/articleshow/33006245.cms).

But this leaves us with the question that ethically do we think that a guilty man was sentenced to death given the nature of the evidence against him?

Since newer questions are being raised on the veracity of eye-witness testimony and the wisdom of sentencing people to death based on circumstantial evidence, we need to put a system in place that allows for things like DNA exoneration, so that we know how many innocent people we sentence to death. Additionally given that poorer people often do not get good legal representation, whether one is sentenced to death or not, does have an economic angle to it.

The second issue is the issue of the arbitrariness inherent in the death penalty.

There are some judges who are more likely to give the death penalty and some who never do. This is an open secret of our judicial system. In fact it is not even a secret. There are instances of people getting different verdicts for similar crimes, depending on the bench they came in front of.

Given that it is human beings who hand out these sentences, it is very possible for subjectivity to enter the equation. But the problem is, this subjectivity decides who gets to live and who gets to die.

Even if one admits that, in principle, it is okay to sentence people to death, can any reasonable person be okay with it turning into a lottery based on the subjective sensibilities of a judge?

There are rigorous guidelines in India regarding when the death penalty can be given, something that was done in the Bachan Singh Case { for those who want to read it http://www.indiankanoon.org/doc/1235094/}  but these guidelines are not always followed.  In 2012, 14 retired judges asked for 13 cases of the death penalty to be commuted after admitting that the original sentence was handed down ‘per incuriam’, i.e. not in accordance with the procedural safeguards laid down in the earlier cases.

It requires a bit of reflection, and perhaps impartial studies into how arbitrary the process of sentencing someone to death, in India, actually is.

The lynch-pin of the argument for the death penalty is deterrence. The jury is still out on that, though more studies seem to suggest that there is no deterrent value in keeping the death penalty out of the statute books http://www.amnestyusa.org/our-work/issues/death-penalty/us-death-penalty-facts/the-death-penalty-and-deterrence). Though intuitively people will be inclined to reason that the possibility of death would deter a criminal, the most heinous of crimes (rarest of the rare) are often committed by psychopaths or hardened criminals. Neither are very likely to be deterred by the prospect of the death penalty (given the complex factors that go into the commission of a crime by them). 

The average person is much more likely to be deterred by a swift trial and the very real likely-hood of serving jail time. In fact crimes like rape-followed-by murder, acid attacks that cause death, khap panchayat killings or dowry deaths (where a woman is killed because she can not pay a certain sum of money to her husband’s family) often happen due to the culture of impunity in our society, where people believe that they can ‘get away’ with committing a crime. These people are certainly not deterred by the academic possibility that they might be sentenced to death someday. Till we address this culture of impunity and fix the delays in our criminal justice system. the death penalty will just be a placebo we take to feel better.

Phew, so at the end of all this we come to the thorniest subject.

Retribution.

Are the crimes committed by some people so terrible that they deserve to die?

I feel that while people cite different reasons for supporting the death penalty, it often boils down to some sort of idea of retribution. Why should THAT man live? Why should we spend on THAT man’s food and lodging? Have you no consideration for what the victim’s family goes through.

Of all these questions it is the last one that deserves the most serious thought. Honestly I have no answer to that particular question. I can not preach to the family about the need to forgive, or the need to let go of what is termed as ‘blood lust‘. Losing a near one to a violent crime must be a traumatic incident that I can not even pretend to comprehend. How one copes with the grief, is an entirely personal matter.

But should this consideration dictate policy? In my opinion,no. Policy should be dictated by the larger ethical issues of the arbitrariness of the death penalty and issue of innocent people being convicted.

So what I want you to do dear reader, is to ask your self whether living or dying, under the criminal justice system should be a matter that depends on who your lawyer was, who the deciding judge was, and various other subjective factors.

I also want you to think about the fairness of an irreversible punishment like the death-penalty, when there is a real chance that the person concerned may be innocent, as the innocence project in the United States of America has shown. (http://en.wikipedia.org/wiki/Innocence_Project).

And leave your comments below.

Cheers!

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2 thoughts on “The death penalty. Or ahem. how I learnt to love dispassionate debates.”

  1. ..then there’s the issue of the contra-deterrent. The fact that “a death-penalty is an outcome” may in fact deter some crimes from getting reported at all. Say, if the muderer were my cousin; I would want her to face the music, but would rather not have her hang. .. but you’ve covered the matter in an earlier article already.

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