DEATH PENALTY: TO BE OR NOT TO BE

This article has been authored by Neelanshi Gupta, a first year student at National Law University, Delhi.

“The death penalty is a symptom of a culture of violence, not a solution to it.”

-Amnesty International

Introduction

Death penalty also referred as “Capital punishment” is the act of taking away a person’s life by the way of sanction by the State. Since it can only be used by the State, when non-State organizations say they have ‘executed’ someone, they have actually murdered them. Death Penalty is normally reserved for the most serious forms of murder, but in some countries, treason, theft, adultery, and rape are also considered capital offences. Although this has been a practice that has been continuing since time immemorial, increasing voices of opposition are being heard as this practice is now seen as violative of human rights obligations and is considered barbaric in nature. It is widely known that death penalty or capital punishment affects some classes more than others, often affecting the many generations that come after the one who has been punished. As movements and campaigns for and against the practice of death penalty gather speed and intensity, the controversial debate continues to grow.

Associated History

Since the dawn of humanity, every society has been using death penalty to punish its criminals and dissidents. Under the Laws of Draco, capital punishment for murder, treason, burning, and, rape was commonly used in ancient Greece (following 7th century BCE). Formal execution has been used since the beginning of recorded history. According to many historical documents and various primitive tribal traditions, death penalty has been a part of tribal legal system. It was also used by the Romans for a variety of crimes, though civilians were granted relief by not being meted the death penalty for a brief period during the republic. Many of the world's major religions have also approved it at one point or another. Followers of Judaism and Christianity, for example, have argued that capital punishment is justified by quoting the biblical passage, “Whosoever sheddeth man’s blood, by man shall his blood be shed”.

The expiatory nature of the death penalty was considered during the Middle Ages, when the man's position in society was no longer determined by a divine law, but rather by a social contract formed at birth between the individual and society. From that point on, capital punishment started to be seen not only as a deterrent to offenders, but also as a way of protecting society from criminals. Rational choice theory, a utilitarian criminology approach that justifies punishment as a form of deterrence rather than retribution was being propagated. Capital punishment was used by contemporary military organizations to enforce military order and even by various oppressive regimes, such as those with Fascist or Communist governments, as a powerful tool of political oppression.

With the rise of modern nation states over the last few decades, the principles of natural and legal rights have been strongly synonymous with justice. During this time, there was a rise in the number of permanent police forces and prisons and the concept of capital punishment gained more support. However, civil rights groups began to emphasize the definition of human rights and the abolition of the death penalty in part as a reaction to such abuses.

The International Perspective

The movement to eliminate the death penalty is gaining traction in the International sphere. In the last decade, international changes have created a consistent and emphatic movement away from capital punishment, with countries abandoning it, calling on the remaining states to drastically reduce their use, and formulating international agreements expressing a firm preference for an end to all executions. Capital punishment has been abolished in law or practice in more than 70% of countries around the world. Many countries have either eliminated or stopped using the death penalty in recent decades, indicating a strong move away from capital punishment. Although international law does not prohibit capital punishment, most countries regard it as a violation of human rights. Many of the most respected and revered world leaders like Pope John Paul II, Nelson Mandela, and Mary Robinson, and even the United Nations High Commission for Human Rights, have advocated for the death penalty to be abolished. In 2002, the World Coalition Against the Death Penalty was established in Rome. It is a coalition of more than 150 non-governmental organizations, bar associations, local governments, and labour unions. The World Coalition's goal is to reinforce the international component of the anti-death penalty movement. Its ultimate goal is for the death penalty to be abolished worldwide. Further, the United Nations General Assembly passed resolution 63/168 on December 18, 2008, which reaffirms the 2007 provision for a moratorium which refers to stopping an activity for an agreed amount of time on the use of the death penalty also known as resolution 62/149. The resolution calls on states to put a moratorium on executions in the hopes of abolition in the future. The international community is well aware that the death penalty is deeply rooted in certain countries and is unlikely to be eliminated anytime soon. As a result, much of the international attention has been on how to curtail the death penalty's more heinous elements.

The death penalty, however, is still used in many parts of the world, especially in countries with large populations and authoritarian governments. People’s Republic of China topped the list of recorded number of executions carried out in the year of 2020, which is considered only a fraction of the total executions as China often keeps these kinds of information confidential considering them as state secrets. According to Amnesty Report 2019, China, Saudi Arabia, Iraq, and Iran are responsible for more than 80% of the executions. Countries with unstable political environments, civil war situation, etc., often are unable to provide their citizens with the basic human rights like death with dignity, legal support for appealing death sentences or even escaping a death penalty with reasons such as accused being juvenile at the time of offence.

Arguments Against Death Penalty

People are executed and sentenced to death by the States often for a number of offences, including those that should not be criminalized. Some countries execute people who were under the age of 18 at the time of the crime, others use it against people with mental and intellectual disabilities, and others use the death penalty following unequal trials, all being in direct breach of international law. People spend years on death row with no idea when their sentence would end or whether they would ever see their families again. Death penalty critics call the death penalty inhumane and point to its inevitability as a disadvantage. They also contend that capital punishment is ineffective as a deterrent, discriminates against minorities and the poor, and promotes a “culture of violence.” Capital punishment, according to abolitionists, is the greatest abuse of human rights since the right to life is the most essential, and capital punishment violates it without cause and inflicts psychological suffering on the condemned. The death penalty is condemned by human rights groups as “cruel, inhuman, and degrading punishment.” According to Amnesty International, it is “the ultimate irreversible denial of human rights.” Following the writing On Crimes and Punishments by Cesare Beccaria which is the first thorough examination of capital punishment calling for its abolition, critics of capital punishment contend that by legitimizing the same behaviour that the statute aims to repress, capital punishment is detrimental in terms of the moral message it sends. Furthermore, they argue that capital punishment is unethical when applied to minor offences because it is wholly disproportionate to the damage caused. Abolitionists, point to evidence that shows death penalty is not a better punishment than the alternatives of life in prison or long-term imprisonment. They argue that the history of capital punishment demonstrates that any effort to point out such types of crimes as worthy of death is arbitrary and discriminatory.

They also point to other reasons that they believe prohibit capital punishment from being administered equally, claiming that the poor and ethnic and religious minorities often lack access to good legal representation. Another reason that the abolitionists provide is that racial discrimination motivates predominantly white juries in capital cases to convict black and other nonwhite defendants in disproportionate numbers. Prejudice of race, caste, sex, gender, etc. aids in defendants being convicted and sentenced to death in disproportionate numbers. Even in a well-run criminal justice system, mistakes can occur, and certain individuals will be executed for crimes they did not commit. Almost all prisoners seeking the death penalty are unable to afford an attorney of their own. As a result, they are reliant on the quality of the state-appointed attorneys, many of whom lack expertise in capital crimes or are underpaid to the point of failing to adequately investigate the case. A criminal who is wrongly portrayed is much more likely to be convicted and sentenced to death. Finally, they contend that because the appeals process for death sentences is lengthy, those who have been sentenced to death are frequently cruelly forced to undergo long stretches of doubt about their fate.

Arguments In Favour of Death Penalty

Supporters of the death penalty argue that those who commit murder have forfeited their right to live because they have taken the life of another. Furthermore, they conclude that capital punishment is a fair means of justice, voicing and reinforcing not only the moral indignation of the victim's family, but also the moral indignation of all law-abiding people. Such supporters argue that capital punishment is a particularly effective deterrent for potentially violent criminals for whom the prospect of incarceration is insufficient. They claim that laws and procedures could be crafted to ensure that only those who are truly worthy of execution are executed. Furthermore, even though some reports on deterrence are inconclusive, this is due to the fact that the death penalty is seldom used and takes years to carry out. The most effective deterrent is immediate and certain punishment. The fact that certain states or countries do not use death penalty has lower murder rates than those that do, is not a proof of deterrent failure. If the death penalty was not used, states with high murder rates would have much higher rates. Finally, the death penalty "deters" the offender who is sentenced to death. This is a type of incapacitation in the strictest sense, similar to how a thief in jail is prohibited from stealing on the streets. The death penalty acts as a deterrent as well as a means of irreversible incapacitation, which helps to discourage potential crime. Supporters of capital punishment contend that risking the life of innocents by way of executing on false or wrong charges is a rare but acceptable risk that one will have to take in order to met out complete justice and retribution. According to them the death penalty, in theory, can justify the execution of an innocent person because it saves lives by deterring other killings. To counter the abolitionists’ arguments, supporters of death penalty argue that lawyers with a lot of money and experience shouldn't be able to get any suspects off on technicalities. The presence of any structural issues does not justify the abolition of the death penalty as a whole and if certain people are punished and others are not, it does not mean that everyone should be spared. And if certain people are wrongly spared from prosecution, the guilty should always be punished accordingly.

Conclusion

Death penalty is practice that has its fair share of pros and cons and valid arguments from both the abolitionists and supporters. There exists no room for doubt in saying that its consequences are irrevocable and far reaching. Even though the international community has started to recognize these irreversible consequences and taken huge steps to bring about a change but there remains a huge scope for improvement in instances of juvenile executions, execution of innocent people motivated by race, caste, gender, sex, ideology, etc. The controversial debate of whether death penalty should be abolished or not is not one which can be treated lightly as it pertains to people’s lives, their rights, and the future of justice. An end to this contentious issue can only be brought by discussions, accepting the reality of the matter at hand, and acknowledging basic human rights obligations that need to be fulfilled.