American experience

Published : Sep 07, 2012 00:00 IST

Andre Davis (left),who was in prison for 30 years, with his father, Richard Davis, after being released on July 6 in Tamms, Illinois. His conviction was overturned on the basis of new DNA evidence.-JOEL HAWKSLEY/AP Andre Davis (left),who was in prison for 30 years, with his father, Richard Davis, after being released on July 6 in Tamms, Illinois. His conviction was overturned on the basis of new DNA evidence.

Andre Davis (left),who was in prison for 30 years, with his father, Richard Davis, after being released on July 6 in Tamms, Illinois. His conviction was overturned on the basis of new DNA evidence.-JOEL HAWKSLEY/AP Andre Davis (left),who was in prison for 30 years, with his father, Richard Davis, after being released on July 6 in Tamms, Illinois. His conviction was overturned on the basis of new DNA evidence.

In Furman vs Georgia (1972), the United States Supreme Court held death penalty statutes unconstitutional for the overly wide and unstructured discretion they conferred on courts. Thereafter, many States redrafted these statutes, introducing guidelines and criteria based on Section 210.6 of the Model Penal Code (1962) authored by the American Law Institute (ALI), the premier and most prestigious body of American jurists. Consequently, in Gregg vs Georgia (1976), the Supreme Court reinstated the death penalty.

In India, inspired by Furman, Bachan Singh and other death-row prisoners challenged the constitutionality of the death penalty. The Supreme Court rebuffed the challenge but took a leaf out of Gregg and introduced the concept of mitigating and aggravating circumstances, which had their origins in the ALIs Model Penal Code. The Gregg and Bachan Singh courts believed that the discretion to impose the death penalty, following clear guidelines balancing the aggravating and mitigating circumstances, was sufficiently structured and obliterated arbitrariness and inconsistency. Subsequent events in America have shown that this belief was so misplaced that the ALI withdrew the death penalty provision in its Model Penal Code, and many of the judges who upheld the constitutionality of the death penalty expressed their regret for doing so.

Justice Harlan in McGautha (1971) had rejected the possibility of structuring discretion through guidelines:

To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express characteristics in language which can be fairly understood and applied by the sentencing authority appear to be tasks which are beyond present human ability.

The Steiker report

By the turn of this century, instances of arbitrariness and wrongful convictions and executions had become too numerous to ignore. In 2008, after sustained debate and deliberation among its members, the ALI commissioned a study on the death penalty by Prof. Carol Steiker (Harvard Law School) and Prof. Jordan Steiker (University of Texas Law School). The Steiker report reviewed the literature, case law and reliable data on the death penalty and investigated whether it was possible to administer a capital punishment system fairly. It focussed exclusively on contemporary administration of the death penalty and institutional obstacles to reform, studiously avoiding moral and political arguments supporting or opposing the death penalty as a legitimate form of punishment. It therefore recommended that the ALI reject a members motion that the ALI was morally opposed to capital punishment.

The Steiker report noted established instances of miscarriages of justice and the likelihood of similar instances occurring in the future. It observed: We can think of no other constitutional doctrine that has been so seriously questioned both by its initial supporters and later generation of justices who have tried in good faith to implement it.

It concluded that the Supreme Courts attempt to regulate capital punishment largely on the model provided by the Model Penal Code has been unsuccessful on its own terms. The guided discretion experiment has not solved the problems of arbitrariness and discrimination that figured so prominently in Furman; nor has the courts regulation proven able to ensure the reliability of verdicts or the protection of fundamental due process in capital cases.

The report attributed the failures in part to the inherent difficulty and complexity of the task of rationalising the death penalty decision and in part to the Supreme Courts own conflicting doctrines. On the basis of this report, the ALI withdrew the death penalty provision, Section 210.6, from the Model Penal Code in October 2009, 29 years after it had been used as the model for Indias death penalty law.

The ALI was not alone in doubting its earlier support for the death penalty. Three of the judges (Powell, Stevens and Blackmun) whose votes in Gregg were crucial for reinstating the death penalty repudiated their former views and said that the death penalty experiment had failed and that the death penalty was a discredit to the law because of its arbitrary and unprincipled use. Justice Blackmuns retraction, articulated in a dissenting opinion in a Supreme Court case ( Callins vs Collins) in 1994, is a powerful statement of disillusionment and sorrow that pre-empts many similar expressions by judges of the Indian Supreme Court in this century:

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavoured indeed, I have struggled along with a majority of this court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavour. Rather than continue to coddle the courts delusion that the desired level of fairness has been achieved I feel morally and intellectually obligated to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations can ever save the death penalty from its inherent constitutional deficiencies. The basic question does the system accurately and consistently determine which defendants deserve to die? cannot be answered in the affirmative. It is not simply that this court has allowed vague aggravating circumstances to be employed ... relevant mitigating evidence to be disregarded ... and vital judicial review to be blocked.... The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

Courts and governments worldwide have tried and failed to lay down satisfactory and clear criteria eliminating arbitrariness, subjectivity and inconsistency from the death penalty. To mitigate this failure, and minimise the number of unjust executions, countries like the U.S. have introduced a labyrinthine and multilayered appeals structure that on average takes 15 to 25 years to complete and costs about $25 million a person.

High cost

A 2011 study done jointly by senior U.S. Court of Appeals Judge Arthur Alarcn and the Loyola Law School in Los Angeles shows that the death penalty has cost the State of California $4.6 billion since 1978, during which period the State executed 13 persons at an average cost of $354 million each. In spite of such rigorous scrutiny of death penalty verdicts, such systems too are vulnerable to mistakes on a gigantic scale. Look at the recent revelations about the execution of Carlos DeLuna, who was innocent of the crime but guilty of having the same name, a similar appearance and living in the same neighbourhood as the man who had committed the crime for which DeLuna was executed.

Governor George Ryan of Illinois, a fervent supporter of capital punishment, ordered an inquiry when confronted with cases of wrongful conviction. On seeing the results, he commuted the death sentences of 167 prisoners. Thirty-three of them were represented at trial by lawyers who were later disbarred or at some point suspended from practice, and 17 were subsequently exonerated on the basis of DNA evidence.

If it costs so much to maintain a system that is still so inevitably flawed, and that is quite dispensable, as evidenced by two-thirds of the worlds countries that have abolished the death penalty, one might as well save the money and the lives.

Yug Mohit Chaudhry

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