The debate on death penalty

Was the hanging of Dhananjoy Chatterjee a cruel and unusual punishment?

THE August 14 execution of Dhananjoy Chatterjee, accused of raping and murdering a Kolkata teenager, brings the curtain down on a renewed debate over the wisdom of retaining the death penalty in our statute book. While an overwhelming majority of those to whom I spoke in the days following the event were supremely satisfied at the outcome, I was greatly disturbed. I do not know why. Was it just the kernel within myself showing up, or a manifestation of my disillusionment with the criminal justice system? Whatever it is, Dhananjoy has succeeded in provoking me to come out openly to assume what could be an unpopular stance. I am sure eyebrows will be raised at my unequivocal stand that capital punishment is barbaric and untenable when most of the civilised world sets much score by human rights and abhors violence. In putting forward my case, I am not going to advance any highfalutin arguments. I intend making simple statements and leave a thought or two with the readers for coming to their own conclusions. In this process, I could be mistaken for being subjective, brash and arbitrary. But the blame lies more in the worthy cause that is espoused.

I am not for a moment taking a lofty view of what Dhananjoy did. Nobody in his senses would underestimate the gravity of his crime or its impact on society at large. Our hearts go to the bereaved parents of the murdered girl, even though our expression of sympathies comes a decade too late and may, therefore, sound utterly phoney. There is also nothing from what we have been told by the press or the visual media that would suggest Dhananjoy did not commit the gruesome crime. Yet, taking away his life just does not seem fair. The state cannot afford to be amoral if not downright unjust. It cannot build itself on a foundation of retribution, which, in fact, is the capital sentence.

I would like to begin with the proposition that violence by an individual or the state against a human being, even when it is sanctioned by law, is abominable. I am in total agreement with human rights groups when they raise their voice against capital punishment. The heart has no reasons, and the description of an act as "abominable" flows from the heart and not from the mind. Just as some of us would not like to hurt even a fly or trample on an ant as we go about our daily chores, we would not also like to take a person's life just because that person deprived another of his or her life. If abolitionists like me are accused of being irrational and unmistakably emotional, many retentionists also open themselves to the same charge. This is because retribution is an emotional response devoid of reason and it cannot form the sole basis for killing a murderer.

When it is not retribution, the retentionists would want us to believe that only the prospect of a death penalty can help bring down the high murder rates. Interestingly, they have for some time given up justifying it as a deterrent device against murderers. This is because there is only flimsy evidence that a fear of the gallows makes a reckless person behave himself and abandon any desire to settle scores through murder. Any police record will prove that a substantial number of murders are committed on an impulse, and the offender cannot come to believe later that he had in fact eliminated an adversary or a total stranger from the world. This is in contrast to the case of serial killers who are not deterred by the death penalty and are mostly psychopaths who have invariably no remorse because they act under a delusion. The law does provide for a defence of insanity or other serious mental impairment that could often go in favour of an accused who cannot genuinely distinguish between right and wrong. In such instances, a long period of confinement to a mental asylum, and not death, is invariably the judicial outcome. This is how it should be.

What we are discussing here are individuals who commit murders with or without a motive and a fair knowledge of the recklessness of their actions. Many of them lose their senses for a flicker of a moment when they resort to their dastardly act. I am almost certain that a majority of them, when questioned subsequent to their crime, are contrite beyond belief. My focus is on this class of offenders.

ABOUT 75 countries have abolished capital sentence by law. Twenty more have it on statute, but have not used it at all for several years. It will, therefore, be correct to say that the penalty does not prevail in about 100 countries. We are among the 80-odd countries that have retained it. The hardliners say that we have good reasons to do so, quoting the figure of about 37,000 murders that take place in India annually. The numbers have steadied, although compared to a decade ago, there has been a sharp rise. The argument for retaining death sentence on this basis is no doubt difficult to ignore, although one may say that capital sentence provided in the Indian Penal Code has not prevented an increase in homicides over the years. The example of the United States is often quoted here in support.

The U.S. is badly divided over the issue, contrary to the belief of the rest of the world that the issue has been clinched decisively by the pro-death penalty camp. British America reported an execution as early as 1608, when in Virginia an ex-Councillor was hanged for betrayal of the colony to Spain. In 1632, a woman was executed for the first time. Several other colonies including New York, New England and Pennsylvania had the death sentence in their statutes well before the first Congress met in 1790 to adopt the U.S. Constitution that provided for the death penalty for rape and first-degree murder.

The American Bill of Rights, namely, the first nine amendments to the U.S. Constitution, did not deal directly with capital punishment. But the Eighth Amendment did prohibit "cruel and unusual punishments" (a phrase borrowed from the English Bill of Rights), and the Fifth Amendment forbade the government from taking any life without due process of law. When the U.S. Supreme Court, in a sensational judgment of 1972 (Furman vs Georgia), struck down the capital sentence as administered then as "cruel and unusual", basing its conclusion on the Eighth Amendment.

Significantly between 1790 and 1972, several states oscillated between retention and abolition because they were not sure what was good for them in the task of maintaining order and controlling crime, without at the same time giving the public impression that they were either arbitrary or unjust. For instance, Iowa, which had abolished the punishment in 1872, revived it in 1878, got rid of it in 1965 again, the same year in which West Virginia removed it from the statute. Interestingly, 1965 also saw two other States, New York and Vermont, abolish capital sentence for most crimes. The Furman decision of 1972 halted executions, and for a few years States were engaged in the task of modifying their laws to bring them in conformity with the Eight Amendment requirements.

A shot in the arm for the retentionists came in 1976 when the Supreme Court in Gregg vs Georgia upheld a new capital punishment law that remedied the infirmities pointed out in the Furman case. The year also witnessed several other rulings of the court upholding that the death penalty was in order as long as it was not arbitrary and was imposed after observing the due process of law. In sum, the U.S. Supreme Court sees no basic objection to death penalty, but it is strictly vigilant to ensure that safeguards and facilities are available for every defendant to put forth his or her best case. As a result of this, all but 12 States and the District of Columbia have now the death penalty for one or more offences.

The U.S. is often projected by retentionists as an example of a tough country that has demonstrated the effectiveness of the capital sentence in controlling violent crime. Actual statistics belie the claim. During 1973-2002, four States, Texas (925 executions), Florida (872), Georgia (299) and Virginia (137), used it more than other States to deter potential murderers. Texas executed 33 during 2002, at a time when 450 were waiting on the death row. And 24 more were executed during 2003. Yet, homicides in that State were about the highest in the country, namely, one for a little more than 6,000 of the population according to a 1992 study. Florida, Georgia and Virginia had a mean of about one per 10,000 of the population. The rate compares unfavourably with non-capital sentence States such as Wisconsin (one per 20,000) and Minnesota (one per 43,000). The national average now is about 5.5 per 100,000 of the population.

MY case for abolishing the death penalty is not based on any fresh evidence. It does not break any new path. It rests mainly on the traditional ground cited, namely, that it has not been decisively proved that such penalty deters crime. Some research points out that the impact is just marginal and for short periods only. Also, as many as 100 countries have gone into the issue and have decided against using it. They should obviously have done this after due application of mind and after evaluating the pros and cons. There is also reason to believe that an overwhelming number of those executed, as in the case of the U.S., come from the poorest sections of society.

U.S. Supreme Court Justice William O. Douglas remarked once: "One searches our chronicles in vain for the execution of any member of the affluent strata of society." Retentionists will say that there is nothing unnatural in this because most of the crime is anyway committed by the poor for economic reasons. They are only partly right. There is the other view that since the poor can hardly afford good lawyers, they invariably end up in the death row. While this casts aspersions on the capacity of judges to arrive at the truth in a clinical manner, irrespective of who the defendant is, there is a more than a grain of truth in such a position that poor offenders cannot get the best lawyers to defend them.

Not unconnected is the apprehension in some countries that death sentences are biased against certain racial minorities. In the U.S. there is the popular perception that blacks are singled out for such harsh treatment. A famous study by three professors led by David Baldus, which looked into 2000 homicides in Georgia in the 1970s, came to the conclusion that racial bias did operate in determining who will receive the death penalty. It is not only the judges but prosecutors also had a role in this by pressing for a death sentence more often in the case of blacks. Recent statistics, however, point to a restoration of balance with the number of whites among those sentenced to death accounting for more than the others.

Of all the arguments advanced by abolitionists, the one that exercises total sway over me is that the prosecution and judges are not infallible and can and do make mistakes. Here such a mistake can prove irrevocable. For instance, in the U.S. a substantial number of prisoners on the death row had been acquitted in the recent past on the basis of DNA evidence that was not available earlier. According to a Bureau of Justice (BJS) publication (Capital Punishment, 2002), as many as 2,403 convictions/sentences were overturned between 1973 and 2002, accounting for one-thirds of all death sentences. This factor, that gross injustice could be caused to totally innocent persons or those guilty of offences that do not amount to a first-degree murder, is itself sufficiently significant to do away with the death penalty.

The famous Italian criminologist Cesare Beccaria's essay on "Crimes and Punishments" is as much relevant today as it was when it was first published in 1764 and had a profound impact on Europe's thinking on penology. Standing decisively against what he called "the useless profusion of punishments which has never made men better", Beccaria assailed the whole practice as one ridden with errors. In his view, punishment was only for protecting society, and for nothing more. Most perceptive was his observation which ran thus: "That some societies only... abstained from the punishment of death is favourable to my argument, for such is the fate of great truths, that their duration is only as a flash of lightning in the long and dark nights of error." I wonder when we in India will come together to emerge from those "nights of error".