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Limits to the death penalty

Print edition : Jan 01, 2010 T+T-

Judges in India award the death sentence only in the rarest of rare cases, a formula that works very well.

Notwithstanding my abhorrence of capital punishment, I keep track of all awards of death penalty and how they are administered by courts the world over. There have been no major problems in India in this regard. Judges in India have been commendably circumspect in awarding the death sentence to an offender and restrict it to the rarest of rare cases, a formula that has worked very well.

This restraint shows the maturity of our judiciary. It also at least partially placates many of us who demand the abolition of capital punishment. I am, therefore, amused whenever parliamentarians demand a change in criminal law that will extend death to rapists and similar transgressors of law and civilised conduct. However well meaning they may be, these lawmakers forget that the moment capital punishment is awarded for offences other than murder, the standard of evidence that a judge will look for goes up greatly. Given the usually low quality of our criminal investigations, many offenders, including child rapists, who deserve to be locked up for several years could go scot-free.

My immediate focus, however, is on a few judgments relating to death sentence delivered by the United States Supreme Court. I must confess my admiration for that court because its proceedings are so well documented and much discussed that they make for fascinating reading, apart from being educative. Again, the built-in transparency that marks the process of choosing its judges, however controversial, is unique in a world that ceaselessly craves to reduce injustice in judicial processes.

On November 30, 2009, in Porter vs McCollum, the U.S. Supreme Court overturned a 1987 Florida Supreme Court decision to convict Porter (77), a Korean war combatant, who had been found guilty of murdering his former girlfriend and her boyfriend in Melbourne (Florida). (In the U.S., every State has a Supreme Court with the U.S. Supreme Court in Washington, D.C., at the top of the pyramid.) Interestingly, Porter attended only a part of the trial court hearings and later chose to plead guilty. At the sentencing hearing, he was represented by a court-appointed lawyer, Sam Bradwell, who had never defended an accused in a capital sentence proceeding. Not surprisingly, therefore, Bradwell did not talk to any of Porters relatives or go through his school, medical or military service records before addressing the court. Porter went on appeal following his conviction for one of the murders. After losing twice in Florida courts, he moved Federal Courts on a habeas corpus writ on the grounds that his lawyer had failed to inform the jury about his experiences in the Korean war and its aftermath. This was, according to Porter, an omission that fell far short of the Constitutions minimum standards for adequate representation.

Consistency is not always a judicial virtue. Judges come from varying backgrounds and each carries baggage that determines his or her responses to a particular crime. The U.S. Supreme Court, which sits collectively all the time, is invariably split between a conservative group and a liberal group, and the odd number of its strength (nine) makes it impossible to be arithmetically equally divided. Except, of course, when one judge refuses to fall under a label and decides each case on merit. Unanimity is, however, not unknown to that court.

In the Porter case, it expressed itself in unison the judgment therefore was unsigned and said: Had Porters counsel been effective, the judge and jury would have learned about Porters heroic military service in two of the most critical and horrific battles of the Korean war. The relevance of Porters extensive combat experience is not only that he served honourably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and emotional toll that combat took on Porter.

Significantly, the court did not attach importance to the fact that he committed the murders in 1986, more than 30 years after the Korean war had ended. Writing in The New York Times (Selective empathy, December 3, 2009), columnist Linda Greenhouse contrasted the courts solicitude to Porter with its decision in the case of Robert J. Van Hook, another military veteran and death-row inmate, this time from Ohio. In November, the same judges reversed the appeal courts judgment in this case. He had robbed and murdered a man whom he picked up in a gay bar. The only difference was that Van Hook had been dismissed from the army for alcohol and drug abuse.

The appeals court had acquitted him on the grounds of insufficient representation by his trial lawyer of several mitigating factors, which included a history of mental illness, cruel treatment at the hands of parents and his witnessing as a child his father trying to murder his mother. Linda Greenhouse is intrigued how two different standards came to be applied, particularly when both Van Hook and Porter had traumatic childhoods. We have perhaps not heard the last word on the subject. Also, we do not know how the Porter ruling will impact the nearly 3,300 convicts languishing on death row. More significantly, the compassion shown to Porter is something that the Indian judiciary may like to ponder whenever it is called upon to decide on the culpability of ex-servicemen in a criminal court.

In another case, the U.S. Supreme Court refused (December 3, 2009) to stay the execution of Bobby Wayne Woods (44), who was convicted for a 1997 murder of an 11-year-old girl in Texas. His lawyers argued that Woods was too mentally impaired to qualify for capital punishment. Over the years, his intelligence quotient ranged between 68 and 86. Support was sought from the 2002 decision by the same court that reprieved one Daryl Atkins, who had been convicted for abduction, armed robbery and capital murder. This lenience was on the basis mainly of a forensic psychologists testimony that Atkins was mentally retarded. Justice Paul Steven, who wrote the 6-3 judgment, said that death to such a person was an unusual and cruel punishment prohibited by the Eighth Amendment.

For some reason, the Atkins decision did not come to the rescue of Woods. Legal experts believe that the 2002 ruling had left behind a grey area as to who qualified and who did not on standards of impairment. This was possibly left by the U.S. Supreme Court to be decided by State courts. It is reasonable that the I.Q. score is perceived as a good standard to determine the degree of mental impairment. Professor Maurie Levin, who teaches law at the University of Texas and who defended Woods, told the court that Woods I.Q. was around 70 and that this was the magical cut-off point for determining whether someone is mentally retarded. The court was not impressed with this argument and gave the green signal for Woods execution.

A third case before the U.S. Supreme Court that has received some publicity now is the one from Alabama. Here, one Billy Joe Magwood is on death row for murdering a County Sheriff in 1979. The then State law imposed two conditions for a death sentence: the offence on hand should be within a list of 14, and there should be some aggravating circumstances under which it was committed. Magwood satisfied the first but not the second condition. Unfortunately, his lawyers were harping right through on grounds other than the absence of aggravating circumstance. They brought this up only in 1997, more than 15 years after he was sentenced to death and 12 years since his re-sentence.

The U.S. Court of Appeals rejected Magwoods appeal in January 2009 as being too late. In projecting a humane face, the U.S. Supreme Court has however now agreed to hear Magwood in spring. The court has made it clear that it will discuss not the rightness of the sentence but whether Magwoods new lawyers were too late in raising the point that what Magwood did in 1979 was not a capital crime at that time. Not many gave Magwood a chance of being heard by the apex court. This is no doubt a victory of sorts for the defendant. But what is more significant is that the apex court chose to spare time amidst its tight schedule to examine a purely technical point.

This reveals high sensitivity and compassion to a convict and is in sync with one of its 2008 decisions (Kennedy vs Louisiana), when it held that it was unconstitutional and disproportionate to award death sentence to a child rapist, however abominable his act might be. This ruling did not exactly gel with hardliners in the country. I thought this was an endeavour to show a humane face because what will ultimately be remembered about a court is not how resolute it was but how articulate and skilful it was in meshing firmness with mercy and kindness. Superior courts would distinguish themselves if they conformed to this exacting standard while dispensing justice.