The earliest mention of the death penalty dates back to 18th Century B.C mentioned in the Code of King Hammurabi of Babylon as well as the Draconian Code in Athens. With time the method of administering the punishment has changed—from drowning, beatings, burning alive to hanging by 10th Century A.D. In recent years, beheading, electrocution, hanging, lethal injection, and shooting have been used to administer the death penalty. According to an Amnesty International report, there has been a 9% decrease in the number of death sentences in 2019 as compared to 2018, although there has been a 38% increase in the number of people on death row from 2018 to 2019.
Just recently the Maharashtra government presented a draft bill which proposed to make changes to the existing laws on violence against women and children. The bill includes enhanced punishment, including the death penalty for rape, a fine of up to Rs 10 lakh on violence perpetrators, faster investigations, and disposal of cases.
The topic of whether the death penalty must be abolished or not has been debated upon for years and depending on people’s idea of justice and human rights, their opinion on the matter changes.
Capital Punishment is contrary to the “Theory of Punishment” in classical law.
“It is better that ten guilty persons escape than that one innocent suffer.” -William Blackstone
As cliche as that quote is, over the past century, it hasn’t depreciated one bit in its factuality. The Death Penalty Project has concluded that over 350 convicts have been wrongfully sentenced in the last century alone.
The “Theory of Punishment” mandates under classical law that there are four main elements to punishment by the state: the protection of society, the deterrence of criminality, rehabilitation and reform of the criminal, and retributive effect on the victims and society.
Coming to the first element about the protection of society, thousands of convicts in the US on the death row spend on an average of 40 years on the death row harming no one and yet are treated with hostility and are brutalised by inhuman punishment as pointed out in the final report of the Justice J.S Verma Committee on 23rd January 2013
It’s not just the statistics but also an application of common logic. The concept of deterrence dictates that any reasonable individual must not be deterred by the severity of the sentence, but the detectability of the crime committed by him.
The prospect of capital punishment immediately nullifies the aspect of reform and rehabilitation.
This leaves the final element—“The retributive effect”. A lot of people argue that the death penalty in crimes such as murder is the only method in which the punishment is equal to the seriousness of the act committed by the accused. The impulse and motive of the death sentence come from the primal and emotive desire for revenge, which is a personalised and emotional form of retribution which often loses sight of proportionality.
Public anger and emotions cannot be an alternative to reason and logic. There must be proper implementation of the law and deliverance of justice for heinous crimes, but capital punishment isn’t the answer.
Capital Punishment is a necessary evil in today’s world.
While many proponents argue that the metric of punishment should be the severity of the crime committed by the individual. They enforce the need to punish heinous crimes with an equally severe sentence.
Some believe that the burden of having to be put on trial and potentially face capital punishment may act as a deterrent of sorts and reduce the ascending crime rate in India.
They argue that no amount of jail time can be as effective of a deterrence mechanism as capital punishment would, purely because the end result is you would always see them walk free. This would never incite the reluctance that the law must incite in an individual before he commits a crime. This leads to the failure of the very purpose for which a legal framework is made stringent.
The abolition of capital punishment poses the risk of sending a wrong message across to the public that such crimes are no longer taken seriously. This may lead to complacency and an increase in the rate of crimes being committed.
Often capital punishment is defined as a form of retribution that reinforces the moral indignation of a citizen or a group of citizens and is justified as such.
Considering that in a country like India, where only four individuals have ever been sentenced to death, proponents believe that such a penalty is enforced only in the rarest of the rare situations and after much deliberation by a large panel of judges.
To those who argue that capital punishment is merciless in its enforcement, the option of a mercy petition from the sentenced individual to the President allows for the parliament and the political sphere to intervene and deliberate over the proposed punishment. Thus, any form of capital punishment that is enforced would be after tireless deliberation, meticulous investigation, and lengthy legal procedures in accordance with the law and the constitution. Hence it would be justified in all aspects.
Recent cases that sparked discussion of its abolishment
Last Thursday Brandon Bernard, a US citizen, was executed by lethal injection at a federal prison in Indiana. He was convicted of robbery, kidnapping, and murder of Todd and Stacie Bagley and was sentenced to death. His last-minute appeal to stay the execution was denied by the Supreme Court and multiple pleas made for presidential intervention were not responded to by President Donald Trump. Five of the jurors and a former prosecutor for the case had also come out against the execution.
Brandon’s execution has once again prompted anti-death penalty activists and political leaders to push for its abolishment with senator Bernie Sanders stating that, “In a world of incredible violence, the state should not be involved in a premeditated murder.” Another reason for the sudden increase in the number of people pushing for reforms in this sector is because after 17 years of no federal executions, the Trump administration has executed nine people since July this year and four more are planned before Joe Biden assumes office with a pledge to abolish the death penalty.
In December 2020, an Iranian dissident and journalist, Ruhollah Zam was executed for his role in the anti-government protests in 2017. His execution comes four days after the Iranian Supreme Court upheld his death penalty despite widespread criticism. According to a Reuters report, France and many human rights groups have condemned the Supreme Court’s decision.
An International Campaign to Abolish the Death Penalty
As such, there are no prohibitions for the death penalty under the International Covenant on Civil and Political Rights (ICCPR). So saying, Article 6 does mention that the death penalty must be reserved for most serious crimes and cannot be imposed if there has not been a fair trial or the defendant is pregnant or under 18. Since the ICCPR forms a part of customary international law, many countries abide by them.
The campaign for the abolishment of the death penalty has supporters such as the UN Secretary-General António Guterres’ who has said that there is no place for it in the 21st century. Through a series of resolutions adopted from 2007 through 2018, the General Assembly has urged member states to respect international standards set for protecting the rights of those facing the death penalty and to reduce its use systematically. As a result of these resolutions, 170 member states have either abolished the death penalty or do not practice it.
Even though there has been a lot of progress in reform initiatives, a lot is yet to be done especially in countries where there is a lack of fair trials, and the rate of a guilty verdict is astronomical.
Written by Aditya Arun Iyer and Cynthia Maria Dsouza for MTTN
Featured Image by Varun Vyas Hebbalalu for MTTN