Debate that will never die

Two U.S. Supreme Court decisions have led to a virtual moratorium on executions in that country and reopened the debate on the death penalty.

death penalty, like limb-chopping or stoning, is a morally outrageous practice whatever its deterrent effect: it reduces society to the ethical level of the murderer. In a society that aspires to be moral and just, there is no room for such a state-sanctioned uncivilised practice.

Allan C. Hutchinson, Harvard Law School

the evidence of a variety of types not simply the quantitative evidence has been enough to convince me that capital punishment does deter and is worth using for the worst sorts of offences.

Gary Becker, Nobel Laureate (Economics, 1992)

TO many of us it may seem hackneyed. The debate whether capital sentence should remain on the statute book or not has, however, not wholly lost its relevance because we are still witness annually to thousands of murders and do not know how to bring down the figure even marginally. Homicide is naturally a favourite subject among criminal justice scholars across the globe, especially those in the United States, a country that in 1972 gave up state-sanctioned killings of peop le convicted of murder, only to return to it within four years. Scholars are, however, sharply divided over the wisdom of persevering with what on the face of it is a barbaric practice.

As the debate goes on, there are new entrants from time to time. The latest are economists, a class whom we would normally not associate with a problem that is generally looked upon as the concern solely of families of victims, policemen, prosecutors, judges, criminologists, sociologists and human rights activists. None of the latter may strike ready empathy with economists. Nevertheless, economists bring a certain refreshing approach that is so badly needed because both protagonists and opponents of the death penalty have run out of ideas and trot the same grounds for either its continuance or abolition.

Another new group of entrants is legal scholars, who had hitherto taken a detached and academic view of the situation and were content with the mere semantics of the law and not its morality or effectiveness.

According to a recent New York Times report (November 18), some economists believe that by persisting with the execution of murderers a substantial number of homicides are prevented. The ratio of 1:3-18 is quoted. I do not know how this formula has been arrived at. The fact that one could be worked out at all is a revelation of sorts, something that we should not ignore. The pack of economists who are convinced that the death penalty deters prospective murderers is led by Gary Becker, who won the Nobel Prize for Economics in 1992.

After conceding that empirical evidence is no doubt not decisive, he somehow comes to the conclusion that we better have the death penalty, in the hope that it would deter at least those who commit the most heinous of offences. He probably had in mind serial killers of young women or children, a category of offenders who had no compunction at all.

Gary Becker receives support from Professors Cass R. Sunstein of the University of Chicago Law School and Adrian Vermeule of the Harvard Law School. Writing in Stanford Law Review (2005) they said: ... the recent evidence of a deterrent effect from capital punishment seems impressive, and added: Those who object to capital punishment, and who do so in the name of protecting life, must come to terms with the possibility that the failure to inflict capital punishment will fail to protect life.

An exactly opposite point of view comes from John J. Donohue III, a Law Professor at Yale with a doctorate in Economics, and Justin Wolfers, an Economist at the University of Pennsylvania. In their brilliant essay, carried by the Stanford Law Review, again in 2005, they described the present evidence of deterrence of capital punishment as fragile. They were slightly derisive of the econometric sophistication of those in the opposite camp. In their view, it is intuitive plausibility that should take precedence in research design and analysis of a problem that is part of public policy.

Addressing the economic question behind the whole debate, Prof. Wolfers was positive that capital sentence is too expensive to persist with. This stand is supported by the fact that an execution for murder is preceded by incredibly prolonged litigation that involves huge costs for both the prosecution and defence. The Donohue-Wolfers analysis ends with a reference to how murder rates in Canada and the U.S. run parallel, although the last time Canada ever executed a prisoner was in 1962.

The New York Times report comes against the backdrop of two recent U.S. Supreme Court decisions which have imposed a near countrywide moratorium on executions. The first of these was on September 25 when the court allowed a constitutional challenge to the protocol for administering lethal injections to a convict. This was a reference from Kentucky involving two convicts, Ralph Baze (49) and Thomas Bowling (52), on the death row for more than a decade, both for separate double murders. While Ralph Baze killed a Sheriff and his deputy while they were serving warrants on him in 1992, Thomas Bowling murdered a husband and wife outside their dry-cleaning store in 1990.

The two appealed against the death sentence awarded to them on the grounds that the lethal injection by which they were to be executed was a cruel and unusual punishment prohibited by the Constitution. The appeals were turned down successively by a State Judge in 2005 and the Kentucky Supreme Court the following year after obtaining medical opinion. The latter went to the extent of saying that the Constitution did not envisage a complete absence of pain to the prisoner during execution.

(Incidentally, the changeover from traditional hanging, electrocution or lethal gas was effected first by Texas in 1982, followed by California in 1996, which was responding to a Federal Judges ban on the use of the gas chamber. At present, 28 States use lethal injection, while Nebraska alone resorts to electrocution.)

The Baze-Bowling ruling of September this year was followed by a similar one on October 30 when the U.S. Supreme Court stayed the execution of a Mississippi prisoner, Earl W. Berry, who is on death row for killing a woman 20 years ago. This was a dramatic intervention indeed, just 19 minutes before the execution that had been set for 6 p.m. on that day. It is significant that Berry got a fortuitous reprieve from the same court that had earlier turned down two of his appeals.

In all probability, it was the Supreme Courts ruling in the Kentucky cases that came to Berrys rescue. In the appeal filed on October 29, Berrys lawyers were for the first time disputing the constitutional correctness of the procedure adopted in administering the injection. The Kentucky prisoners and Berry were taking advantage of a finding that the injection was after all not painless. It is known that such an injection uses three chemicals: sodium thiopental to induce unconsciousness, pancuronium bromide to cause muscle paralysis and potassium chloride to stop the heart.

In some instances of inadequate administration of sodium thiopental, it was possible that the chemicals anaesthetic effect could wear off before the heart stopped. Amnesty International refers to the case of a Florida convict in which this actually happened.

It will not be until next spring when the Supreme Court rules on the constitutionality of the current procedures relating to lethal injection. In the meantime, no State may be expected to go ahead with an execution. In fact, there have been only 42 executions during 2007, against an average of more than 300 a year since capital punishment was restored in 1976. Experts believe that those opposed to the death penalty will take advantage of the current lull and further intensify their campaign.

What do all these happenings in the U.S. mean to us in India? Let us not take the lofty stand that these are not relevant. The U.S. Supreme Courts ruling next year in the Baze-Bowling case should throw up some ideas even if it upholds capital punishment and the lethal injection.

The moral of the whole story is that we need to be conscious all the time as to how we treat our convicts, especially those on whom a death sentence has been imposed. If we cannot make our prisons more civilised than they are now, let us at least not inflict pain on those who are locked up there. Civil society in the country must be more active than they are now in order to ensure this. Meanwhile, those like me who are against the death penalty will continue to strive towards its abolition. We may not succeed. We will at least have tried.