The death penalty debate

Two recent instances in the United States and the United Kingdom give additional ammunition to the opponents of capital punishment.

THE recent execution of Timothy McVeigh for causing the 1995 Oklahoma explosion in which 168 persons were killed has generated a renewed debate in the United States on the fairness of the criminal justice system in retaining this form of punishment and the manner in which it is administered. More heated has been the controversy surrounding the subsequent conviction in Florida of Joaquin Martinez, a young Spanish national, for a double murder in 1997. His supporters sought a re-trial and won the case, taking advantage of the several errors proved against the prosecution. This case has given additional ammunition to opponents of capital punishment, who are convinced that state-induced deaths are barbaric and that many trials have resulted in the execution of innocent individuals, victimised by an unequal criminal justice system weighted against the poor and the underprivileged.

In fact, the frequency of executions in the U.S. had come down markedly in the 1960s. In 1972 the Supreme Court, in the celebrated Furman vs Georgia case, struck down the death sentence as a "cruel" and "unusual" punishment that is violative of the 8th and 14th Amendments to the U.S. Constitution. This moratorium, however, ended in 1976 with the Supreme Court endorsing the re-writing of the guidelines for the imposition of such penalty by some States - especially Georgia - in response to the Furman case verdict. According to one estimate, more than 700 executions have since taken place. (President George W. Bush holds the dubious distinction of having overseen 152 executions as the Governor of Texas.)

There has been another sensational development that should warm the cockles of the anti-death penalty lobby. In a July 3 speech to a group of Minnesota women lawyers, Supreme Court Justice Sandra Day O'Connor raised serious doubts about the fairness of the death penalty. She said: "If statistics are any indication, the system may well be allowing some innocent defendants to be executed." This was a remarkable turnaround for a Judge who, in her previous incarnation as an Arizona legislator, had taken an unequivocal pro-death penalty position.

The New York Times (July 5) attributes O'Connor's surprising stand to two factors. One is that the Supreme Court will shortly have to deal with two controversial cases. In one of these, the court will be required to rule on the constitutionality of awarding the death sentence to an accused person who is mentally retarded. In the other case, it will have to uphold or reject a defendant's plea for the quashing of the death sentence on the ground that counsel who represented him had a conflict of interest.

THE growingly visible concern of Justice O'Connor over the fairness of administering the death penalty is striking. In her Minnesota speech, she referred to the fact that as many as six death row inmates were exonerated last year. (Incidentally, since 1973, 90 such inmates have been similarly exonerated in the U.S. just before being executed.)

A controversy rages in the United Kingdom as well, following the life sentence awarded to Barry George for the murder of BBC presenter Jill Dando on April 26, 1999. Forty-one-year-old George, an unemployed person known for his "unusual interest in celebrities and a passion for arms", has been convicted purely on circumstantial evidence. There is no eyewitness nor has the prosecution proved any motive. Ironically, while slapping the sentence on George, the Judge said: "Why you did it may never be known, since, in my view, it is probable you can give no rational explanation for what you did." The public indignation over the verdict and sentence is understandable. Jurists all over the world are also likely to be incensed. Against this background, the question is, how far is retaining capital punishment justified?

A delightful new book on the subject that has evoked great interest in the U.S. is Actual Innocence: Five days to Execution, and other Dispatches from the Wrongfully Convicted (Doubleday, New York; 2000) by Barry Scheck, Peter Neufeld and Jim Dwyer. The first two founded and now run the pro bono Innocence Project at the Cardozo School of Law. (Dwyer is a Pulitzer Prize winner and a columnist for the New York Daily News.) The project seeks to obtain the release of wrongly convicted individuals through DNA (deoxyribonucleic acid) testing and claims to have succeeded in respect of 37 innocent convicts. The absorbing book gives an account of the efforts to free 10 innocent persons wrongly convicted by "sloppy police work, corrupt prosecutors, jailhouse snitches and mistaken eye-witnesses", compounded by the inevitable errors in the trial system. The accent of the book is on how DNA fingerprinting has revolutionised investigations and facilitated the identification of real culprits and the elimination of innocent suspects. A remarkable statement by the authors presents the position succinctly: "DNA testing is to justice what the telescope is for the stars: not a lesson in biochemistry, not a display of the wonders of magnifying optical glass, but a way to see things as they really are."

Rightly, Justice O'Connor lashes out against U.S. States which do not permit post-conviction DNA testing. The number of exonerations based on DNA evidence has been the highest in New York (7) and Illinois (14), two States that permit post-conviction DNA testing. They also pay for such testing if the convicts cannot afford it.

IN India the campaign against capital punishment has shown occasional signs of life. One explanation for its not having been vociferous is that possibly because the death sentence is sparingly used. The "rarest of rare cases" prescription has held sway. It is difficult to foresee any basic swing in perceptions. Nevertheless, the debate in the U.S. cannot be wholly ignored. Also, India needs to expand DNA testing facilities. Understandably, there are only a few centres that undertake this. This is because the costs are enormous. But then a credible criminal justice system does not come cheap.

The saddest thing, however, is that all over the world a lot of innocent persons will still be in jail. They are those who cannot come under the scope of DNA testing only because the investigations do not involve biological evidence. This is the dismay of Scheck and others.

Ninety-nine offenders may go scot-free, but not one innocent person should go to the gallows. This is the edifice on which the jurisprudence of all civilised countries is built. This alone is the case for efficient and balanced prosecutors and dispassionate judges with a conscience that dictates their rulings.

R.K. Raghavan is a former Director of the Central Bureau of Investigation.