Saturday, December 22, 2012

Capitally flawed...? -- How to deal with the death penalty


The death penalty has always been a matter of much debate. It can be generally seen that the death penalty has existed in most penal systems throughout the world historically, but has progressively declined both in its barbarity and in frequency of application as civilization has progressed. Initially what used to be summary executions by the kings later on came to be adjudicated by courts of law. From beheading by swords and on gallows, and crushed to death by elephants, it came down to death by hanging, by firing squads, injection of lethal poison, and electrocution after anesthesia. Today we find many countries have altogether banished the death penalty -- in the European Union, most countries in Latin America,  Australia, New Zealand, Canada, South Africa etc . Some, however, do retain it, like the US (several states, not all), most Asian and African countries, including China, Japan, Indonesia, Singapore and India. The most widespread application is in China, where it's supposed to run into thousands per year though not officially declared, and in Iran (a few hundreds per year), Saudi Arabia, North Korea, and the US (a few dozens each per year). Countries like India, Indonesia, Malaysia and South Korea have been very sparing in its application, while Israel has virtually given it up. The above, of course, is limited to the question of capital punishment as a matter of judicial recourse; otherwise, the twentieth century has probably been the bloodiest in history, when one looks at things like the Nazi holocaust, Stalin's elimination of about a million political opponents, communist executions in Mao's China and Pol Pot's Cambodia, etc.

It stands to reason that as democracies have evolved, the death penalty has lost more and more favor. It can be seen that a position on the death penalty is effectively a barometer of a nation's civilization. Only the more authoritarian nations have seen the greater number of death penalties, while those which are higher on the development and democratization scale have moved completely away from it. There is an international movement towards the complete abolition of the death penalty, with the United Nations being the principal proponent. The retentionist countries have opposed it, including India, like it did a few days ago, the advocacy of pro-human-rights groups notwithstanding. It may be noted, though, that while about twice as many nations have abolished it as retain it, the division of public opinion is quite the opposite. Generally, about two-thirds of the people worldwide are seen to favor a death penalty for murder, and about a third opposed. However, when offered an alternative sentence of life without parole, the support for the death sentence falls to about 44%.

The matter has assumed greater immediacy in the Indian context because of a spate of high-profile capital punishment cases in recent times, the latest being the execution of Ajmal Kasab, the lone terrorist caught alive in the 2007 Mumbai attack. There are other cases of convicts on death row, like Afzal Guru for the 2001 Parliament attack case, Balwant Singh Rajoana for the killing of Punjab Chief Minister Beant Singh, and the killers of Rajiv Gandhi. There are several more which receive much less press coverage, because they are for less politically sensitive, 'ordinary' crimes.

What we need is to examine the merits of the arguments both in favor of the death penalty, and those against it. What are the pros and cons of each...? Is public opinion well supported by hard data...? What is the way forward...?

Arguments for and against the death penalty:

The principal argument in favor of retaining the death penalty is that it works as a great deterrent against heinous crimes. While the general public would be great believers in this superstition, at least the data from the United States shows that actually the inverse in true -- that murder rates are lower in those states which do not have the death penalty. The very fact that China executes several thousands per year implies that at least several thousands of those heinous crimes did take place, the widespread death penalty notwithstanding. Compare that to the crime rates in the European Union, which doesn't have the death penalty. Even without going into the correctness of the thesis, and the methodology of analysis, it's easy to see why deterrence cannot come from the quantum of punishment. Because while committing a crime, the criminal doesn't really believe that he's only going to escape the capital punishment and that's why he can afford to commit the crime. He believes that he'll escape any form of punishment whatsoever, by not getting detected at all. And the only thing that contributes to this is how many instances he sees around him where criminals got unpunished (for crimes of whatever magnitude, high or low). Therefore, the only effective deterrence can be the fact that every crime meets a punishment, and quickly that. Only the detection and conviction rate matters for deterrence, not the quantum of punishment. Imprisonment for several decades is strong enough, in so far as deterrence goes, so long as a would-be criminal knows that nobody escapes. Death penalty will serve only 20% deterrence purpose, if the criminal knows that there is only 20% chance of ever getting caught or convicted.

The principal argument in favor of abolishing the death penalty is that since it's irrevocable, it would need hundred percent accuracy in judgment, which is not feasible in practical terms. There is always a chance of the investigation and/or conviction going wrong, and it's not fair to kill under the garb of such a judgment. There are many instances from all over the world where the convict has been found innocent posthumously. Very recently, in UP, two such cases came to light where two convicts were on death row for several years, when it turned out that the persons they were alleged to have killed were not even dead. It just shows how completely wrong the judicial process can be even after several layers of scrutiny. And it’s not limited to India alone. Even in the US several convicts have been found to be innocent after having been executed. Examples abound from the rest of the world too, like the notorious case of the Birmingham Six, where six persons were imprisoned for sixteen years each for a terrorist blast (attributed to IRA) that killed 21, and later released as innocent. Here is a similar miscarriage from China.

Several international organizations are at the forefront of the campaign against the death penalty, principally among them Amnesty International. The UN too has repeatedly passed resolutions asking member nations to discontinue the death penalty, though most of the countries where it’s still in force have raised objections against it, including India as recently seen. India, though has been applying it only very sparsely, with only two judicial executions seen in the last decade – Dhananjoy Chatterjee in 1998 and Ajmal Kasab recently. Even in neighboring Pakistan there are voices favoring the abolishment of the death penalty, and Pakistan has had only one execution since Musharraf quit.

In the Indian context, it has also been seen that Legislative Assemblies have often passed resolutions in favor of granting mercy by commuting the death sentence to life imprisonment, despite the Supreme Court confirming the death penalty. At least three incidents come to mind – Jammu and Kashmir Assembly for Afzal Guru who conspired in the Parliament attack; Tamil Nadu Assembly for conspirers in the killing of Rajiv Gandhi – namely Murugan, Perarivalan and Santhan; and the Punjab Assembly for Balwant Singh Rajoana, who was involved in the killing of Chief Minister Beant Singh and seventeen others in a terrorist attack. Though the appeals are somewhat on partisan lines and with political expediency being present in the mix, it very clearly shows that at some level, there is a high degree of abhorrence for the death penalty, as is there a high degree of disagreement on the judicial fairness. There are voices against such resolutions, but those too are highly partisan in nature (‘selective nationalists’), and eyeing to exploit political gains among the reverse constituency. 

It has also been observed that the application of the death penalty in India (and also around the world) has a distinct class bias, apart from being afflicted with a high degree of arbitrariness and ad-hocism. The only people executed are those belonging to the lowest strata of society, often dalits and members of underprivileged minority communities. It’s hardly anybody’s case that the well-to-do never indulge in crimes of such magnitude as to deserve a death penalty. Most of the gun brandishers, who pull triggers at the drop of a hat, and cock a snook at the entire legal system, are actually from the creamy sections of society. Go figure how many brides are burnt in their homes, and how many female foetuses are aborted in their plush clinics.  But there is no precedence of such people ever getting hanged – so much so that Clinton Duffy, warden of the San Quentin prison who had supervised executions of 90 people between 1940-52, has said that  the death penalty is a privilege of the poor’. This buttresses the fact that if you have enough resources, you can wriggle your way out, leaving the burden of societal outrage to fall on hapless convicts from the lowest strata alone. This has been highlighted by several eminent Supreme Court judges, notably among them Justices P. N. Bhagwati and V. R. Krishna Iyer. You can always hire attorneys who'll make sure that you escape the noose, no matter what the crime. Such attorneys come at a high price. Only those who cannot afford them -- like Dhananjoy Chatterjee -- actually go to the gallows. If ever there was a greater mockery of tough justice…! If you have capital, then that punishment is not for you.

Columnist Prabhat Kumar Shandilya, writing for the Hindi daily Hindustan, has captured it succinctly in the words -- 'there is hundred percent reservation in capital punishment'.

Therefore, it can be reasonably asserted that civilization and even-handedness of justice demand that the death penalty be done away with. Its imposition simply shows that a very low premium is being put on life – to simply snatch it away. And that by itself is a very bad example, and not in keeping with the evolution of human thought. However, there is case for deterrence value; though in my view, it’s actually a specious argument. The deterrence comes from the certainty and swiftness of punishment, not its quantum. The stronger case for the death penalty is the protection of the life of other victims, whom the convicted killer could kill again were he to get another chance. That’s the factor which needs to be given the heaviest weight, instead of some ill-conceived notion of delivering justice to either the perpetrator or to the victims, through the mechanism of capital punishment. 

It’s therefore necessary to examine the whole question of the death penalty and find a way forward. It’ll be ideal to find a middle ground, which’ll retain the deterrence value, while still doing away with the death penalty for all practical purposes.

The proposed mechanism:
Auto-commute with forfeiture of the right to appeal

Here is a proposal which I think can help achieve that middle ground. (Gender neutrality is implicit.)

1)  The death penalty should be retained in the penal code for all crimes where it’s currently applicable as the maximum punishment. It would primarily be applicable to brutal murders, or causing grievous injury in brutal fashion, which can be construed as attempt to murder.
2)  Imposition should continue to be in the rarest of rare cases, and with the application of the most rigorous and foolproof trial process, as per the current, stringent Supreme Court guidelines.
3)   Once the death penalty is awarded, the convict will have a right to petition for Presidential Pardon, as now. The petition can be made either by the convict himself or somebody else on his behalf. 
4)   If the mercy petition is made, the sentence will automatically be commuted to life sentence. Life sentence under such commutation would mean at least twenty five years in prison, or until the convict reaches the age of 70, whichever comes later. Parole can apply as per the assessment of the prison authorities after a decade in prison. Parole cannot be demanded as a matter of right, but only made available as special consideration subject to good conduct in prison, and only after expiry of a decade. Waiver of sentence beyond (never within) the minimum 25 year term can be considered subject to impeccable conduct and complete law-abidance through the entire sentence.
5)   If a convict is a beneficiary of the above commutation, he’ll forfeit his right to appeal for a crime which entails the maximum punishment of death, for all future times.
6)   If the convict indulges in a death penalizable crime again in the future, before or after having served out his life sentence, he’ll be tried only once in the lowest applicable court (assuming he gets convicted -- otherwise, of course, the prosecution can always challenge the acquittal in a higher court).
7)   If the lowest court finds him guilty, only the maximum punishment, which is death penalty, would be applicable, even if the crime could have otherwise merited a lower sentence. However, before pronouncing guilt, the court will have to exercise the strictest rigor in examination, and the fullest legal aid should be provided to the accused to fight his case. The accused’s only chance will be to be completely acquitted, as any conviction for a crime which has the maximum of death penalty, will invite only the death penalty. The accused will have no right to appeal against the verdict in any higher court, because he has already forfeited it upon getting the Presidential Pardon. The only consideration for the court would be the evidence, not in any way the fact that there is no re-examination that can be claimed by the accused. Only guilt will be looked into, without prejudice to the impending penalty.
8)   The sentence would be forwarded to the High Court for vetting, and upon its clearance, the accused would be summarily executed. There will be no further retrial in the High Court.
9)   Although the convict, or someone petitioning on his behalf, will have no right to appeal, the higher courts (High Court and Supreme Court) would have the right to suo motu call for a retrial, in case they suspect the trial in the lower court to have been bad in law or erroneous. If they reconfirm the guilt after retrial, however, again the maximum penalty only will be applicable. Since there is no right to appeal, no Presidential Pardon can be sought for a second time, and the trial would end latest at the Supreme Court, and the accused will be executed.
10)For the purposes of this commutation, only the first death penalizable crime committed for which a death penalty has been confirmed by the full process of law, will be considered. It’ll apply regardless of whether only one person was killed or multiple were, so long as it happened in the same incident. The definition of ‘same incident’ would be that it happened within the same hour and in the same restricted geography (within a few hundred square meters). If the second killing happens after the accused has had several hours of deliberation following the first killing, or in a geographically distant locality, they will cease to be considered as one incident. No automatic Presidential Pardon would apply in such case, although discretionary pardon can still be sought.
11)Serial killers, whose multiple perpetration is established in law, and who are medically and psychiatrically certified to be psychopathologically afflicted, will never qualify for this automatic pardon. There is no chance of reform, and it’s too much of a risk to the next person’s life, for society to brook keeping such a person alive.
12)People indulging in terrorism, where completely innocent common people are targeted, would be treated on par with serial killers, and thus would not qualify for automatic pardon. This exclusion will apply only to people who were directly involved in the act of killing, and not to those who are peripherally involved, in whatever grave manner (say, conspirators). 

(Comments welcome for improvement.)


The general idea of this mechanism is that those who have fallen into a crime that is death-penalizable, whether in a fit or in pre-planned fashion, will get a once-in-a-lifetime chance of avoiding the death penalty, and reforming themselves, so as to become law-abiding, and productive members of society again. If that is achieved, the purpose of justice and punishment will have been well served. However, if the criminal indulges again in such crime, then it can be reasonably assumed that he's a terrible danger to the life of common citizens whose need for protection would override any consideration for the human rights of the convict. Since the double convict has now established himself to be unreformable, and unrepentantly defiant of the law, there is no further practical sense in incurring any cost on his incarceration, and he should be put to death without further delay, once his guilt is reestablished. This, however, would be a remote possibility, since it's highly unlikely that a criminal would not be reformed and attenuated even after 25 years of imprisonment, to be committing the crime again. Therefore, practically speaking, the convict would be able to live through his natural life-span. The objective of the 'forfeiture of the right to future appeal' is to underline to the convict that he's living on borrowed time, and mustn't take a single false step in the future.

It must be underlined here that the above 'auto-commutation of death penalty to life imprisonment' is not a matter of right for any convict under any circumstances. It's just a matter of general policy, to be accorded as a privilege. A privilege, never a right. It should be treated on par with a driving license -- generally granted, but no one can claim it as a right -- it's always a privilege, granted solely at the discretion the administration of the day, and as such, by definition, withdrawable. It follows, therefore, that if such a privilege is denied, under exceptional circumstances, it'll not tantamount to violation of the law or dishonor of the rights of any convict. The nature of the exceptionality will need to be explained to Parliament, to its satisfaction, before the auto-commutation (through Presidential Pardon) is denied. However, in the maximum number of cases, the guideline will hold good, and be applicable as a matter of routine.

By contrast, the right to receiving legal aid and advocacy, the general right to appeal (outside of the special context of a death-sentenced convict repeating a crime), the right to receiving a fair and just trial, the right not to self-incriminate (to be viewed in conjunction with plea-bargaining), are inalienable rights of any accused. Under no circumstances can those be violated. To construe this as preferential treatment for the criminal, over the legitimate distress of the victim, is nothing but wilful distortion. This is not a matter of sympathy for the perpetrator, but of preserving the sanctity, fairness, rigor and correctness of the judicial process.

One of the considerations of the above scheme is that death affects the person executed less, and is a greater punishment for his kin who live, and is likely to accelerate even their deaths. There is no need to subject the parents, and the immediate family, to such a deliberate and irreparable loss, for no fault of theirs as such. While it may be argued that the kith and kin of the victim are more aggrieved, and they must receive justice, I believe that is a flawed argument. Because it's even theoretically impossible to make good the loss that they have suffered. Nobody can undo that -- it's irreparable. The only objective of society and the law can be to prevent such recurrence through suitable and effective deterrence, to obliterate the capacity of the convict to repeat the crime, and to also give a chance to the convict to become a well-serving member of society again through reform. The victim or his family do deserve whatever care and protection that is due to them from society at large for the loss they have suffered, and everything must be done to compensate and rehabilitate them. However, even the victim or his family, have no right to revenge, no matter what their loss has been. The call for capital punishment, even if made by the victim's near ones, must be overlooked. For the simple reason that inherent in it is a carnal instinct, which in the first place was responsible for the very crime itself. There can be no justification for fanning such instincts in any manner. Revenge is a vicious circle, which is endless.

It must be understood that auto-commutation is not the equivalent of letting the criminal go scot-free. His crime has been fully established, and he's being given a very stringent punishment of a minimum of 25 years in prison under hard labor, which can potentially exceed and extend up to the age of 70 (or beyond), and with at least a decade without parole. The full force of law has been brought to bear against the criminal, and such force should normally suffice for completely incapacitating the criminal from future crimes. However, the force need not extend to killing altogether, unless it becomes necessary in order to save future lives. The objective of law is protection, prevention, and punishment for the sake of reform. The objective is not retribution or revenge.


Under this dispensation, let's see how most of the scenarios that have recently been under debate will play out.

Murugan, Perarivalan, Santhan  -- the conspirators in Rajiv Gandhi's killing. Will get death penalty by the Supreme Court, since their guilt is incontrovertibly established, and the ghastly crime (which also involved the collateral death of a large number of innocent civilians assembled around him) falls squarely within the definition of rarest of the rare. However, since they were not directly involved in the act of terrorism, but only conspirators, they'll qualify for auto-commutation through Presidential Pardon, to a life sentence of at least 25 years, or until the age of 70, whichever is later. After the minimum 25 years of imprisonment, however, they can be considered for waiver of sentence, subject to impeccable conduct throughtout the sentence. They'll have had no right to parole either, for the first 10 years of imprisonment. Since these people have already spent over two decades in prison with good conduct, there is absolutely no case for keeping open the prospect of executing them today, and subjecting them to torture.

Afzal Guru -- involved in the terrorist attack on Parliament with a view to uprooting the authority of the Indian state. He too was a peripheral actor, involved in conspiracy and logistical support, and not directly involved in the act of killing. Therefore, although involved in heinous terrorism (which caused the deaths of seven security guards) he'll get the death penalty, but not be excluded from auto-commute for the first offense. He'll get the same treatment as killers of Rajiv Gandhi, and get a minimum of 25 years in prison. The fact that he is an educated (and married) person, a medical student who was also preparing for the IAS, and not one with general criminal history, should also weigh in favor of assuming that he can be made to see the error in his thinking, and reform himself over a long period of imprisonment.

Balwant Singh Rajoana -- killer of Punjab CM Beant Singh. Not a direct killer -- he's alleged to have tied the explosive belt around Dilawar Singh who blew himself up, killing Beant Singh and seventeen others. He was also the backup, in case Dilawar Singh failed -- therefore his role is not merely peripheral. However, this is his first offense. The person is evaluated to be of sane mind, principled, and not psychiatrically unstable. The crime involved a feeling of grudge, against Beant Singh's iron-handling of Punjab militancy and the anti-Sikh riots of 84, and is thus driven by political outrage. Rajoana is not a threat to citizen's life at large. He should get the death penalty for his heinous act of terrorism, but will qualify for auto-commutation.

Renuka Bai case. Two sisters from a poor background in Maharashtra, were found guilty of serial killings of children, some years ago. They'd kidnap the children to force them into petty crimes like pick-pocketing and robbing. Whenever the children would grow inconvenient for them, they'd kill them for fear of being caught. It's possible that the women were mentally deranged. Though one could sympathize with the plight of the deranged women, that cannot be good enough reason for commuting their death penalty, though generally women are not awarded that. Because, it's certain that they are psychopathological, and uncurable. Keeping them alive is only a risk to other innocent citizens' life, in the event that they escape due to any reason. They'll not qualify for an auto-commute, and neither for discretionary mercy by the President. Should be put to death immediately, however regrettably, since there is no practical reason for keeping them alive.

Devinder Pal Singh Bhullar -- involved in a terrorist bomb blast against Youth Congress president Maninderjit Singh Bitta. Bitta escaped with injuries but nine others were killed, and twenty-seven maimed. Has already been awarded death penalty by the Supreme Court, and President Patil has rejected his mercy petition. Now, some weak arguments are being presented regarding his mental health, to prevent his execution. However, as per the policy underlined above, Bhullar should get death penalty, but qualify for auto-commutation, since though nine people were killed, it was in a single incident, and it was the first offense.

Ajmal Kasab. Directly involved in the killing of several dozens of innocents in full view of CCTV cameras in the Mumbai terrorist attack. Extremely heinous crime, and a clear act of waging war. He went from place to place killing 55 people, in the most premeditated manner, completely remorselessly. There are no mitigating circumstances for the crime. However, there are mitigating circumstances for his life-history overall. Born to extremely poor parents, he was sold off to militants at an early age, for the sake of some money. This is not very different from the phenomenon of poor rural parents in India hiving off their daughters to work as household maids. He was brainwashed into jihad, by the machinery of the terrorist network Jaish-e-Mohammad. It was not Kasab's own choice to be born into such an environment, devoid of normal childhood and schooling, and finding oneself in the midst of a set of depraved minds. The crime was perpetrated through him, and only superficially by him.

Kasab didn't show signs of insanity, or psychopathology, during his four year trial and imprisonment, as as such wasn't necessarily a random threat to people's life. It wasn't altogether impossible that he could have been reformed through a long period of imprisonment. Also, his crime was in a single incident, though multiple deaths were caused. While it did span a small geography and probably lasted longer than an hour, it stands to reason that it was a single continuous event, without the opportunity of any reflection. However, with the background of his gruesome crime, it's too much of a risk to give him the benefit of doubt, on the remote chance that he may not actually be irretrievably deranged and be reformable. There is also a very high risk that a rescue operation could some day be carried out by the terrorists to free him, through an airplane hijack or such, as happened in the case of Azhar Masood. Masood, arrested for terrorist activities was imprisoned, and later freed in the Kandahar Hijack. He returned to plot the terrorist attack on Parliament.

Therefore, prudence demands that he cannot be kept alive. He gets death penalty through the due process of law, and would not qualify for automatic-commutation as per the above scheme. He needs to be executed, in the larger interest of saving innocent lives, whom he could have potentially endangered in the future. One could have sympathy for what Kasab got dragged into -- his circumstances do demand that. However, there is no way he could have been kept alive. If, in the future, technology develops to a level that the prospect of further endangering lives through the likes of Kasab could be practically extinguished, one could consider sparing life. But that day is still some distance off.

One has to always keep in mind that the death penalty would only be applied under exceptional circumstances, and for the sole purpose of saving future lives, where a high risk of such threat could be reasonably established. The death penalty will not be applied for retribution. It will not be done with the goal of 'an eye for an eye'. The death penalty would never apply except in the case of intentionally causing loss of life, or such grievous injury that comes close to causing loss of life. The death penalty can never apply for a crime like rape. For the simple reason that rape is a lesser offence compared to raping and subsequently killing. In the absence of such distinction, it becomes an inducement to kill as well, for destroying evidence. Which is contrary to what the law strives for.

Recent Delhi gangrape incident reigniting the clamor

As this piece is being written, there has been this case of brutal sexual assault on a young girl and her companion in a moving bus in New Delhi. The brutality of the matter, leading to the loss of intestines for the girl, and the prospect of having to live on intravenous fluid nutrition for life even if she survives the current ordeal, has sparked a justified outrage across the nation, and a renewed demand for death penalty for such barbaric crimes. The common refrain is that it'll make the perpetrators of such crimes think twice before committing such crimes -- essentially that it's needed as a strong deterrent. 

However, that the death penalty prevents anything is just a superstition, and like all other superstitions, even an infinite number of people believing in it won't make it true. Crime gets committed in one of two ways -- either heat of the moment, like the current one, or cold-blooded, premeditated and planned. In the former, there is no calculation whatsoever of consequence in the minds of the perpetrator. There is no cost-benefit analysis done at all. Therefore, even if cost is increased to the highest possible value -- a death penalty -- there would be no effect whatsoever. All those clamoring for capital punishment for this need to understand that fact -- NO cost-benefit analysis is taking place in the perpetrator's mind at that moment. Therefore, it does not matter what the consequential penalty is -- it'll play no role whatsoever. The deterrence will work on rational beings, who are capable of evaluating. A rational person does not commit crimes, because the prospect of even the least punishment will be abhorrent to him.  A heat-of-the-moment criminal is a not a rational being, at least not at the moment of the crime. The death penalty will achieve revenge, but not deterrence. You'll kill a person, but not save the next victim. As regards the second category of criminals -- the cold blooded one -- that guy believes that he'll make arrangements for evading punishment of any nature whatsoever, by not getting caught. His belief is false, but commits the crime only under that intoxicating false belief. Otherwise, if the slightest fear enters his mind that he'll get caught, no matter what the punishment -- he'll refrain from the crime. 

Therefore, the essential fact is that crime can only be deterred by instilling the fear that you'll always get caught and punished, no matter how small or big the infringement. To achieve that, what you need is to make sure that even the smallest eve-teasing incident leads to inescapable capture and punishment. Make sure that the slightest assault on human dignity and freedom is brought to book, INESCAPABLY. That'll instill the fear. We didn't need death penalty to prevent this gangrape. We needed to prevent drunken driving and assembly. If the police could catch every single person who drinks and drives, regardless of being rich or poor, and apply appropriate punishment swiftly, nobody will dare develop this open defiance of law. And, last but not the least, it's high time that we Indians realized that we have degenerated into a nation of cowards. Every single eve-teasing incident happens in the midst of a whole bunch of tamasha-watchers. If people show the courage to instantly give the perpetrator a bloody nose, then and there, nobody would dare violate again, and things wouldn't come to such a pass. Instead, Indians will merely indulge in the hypocrisy of outrage, but will slink away when required to stand up.

It's argued that it's not just a matter of deterrence, but that the perpetrator has earned himself the death penalty through his barbaric behavior. If the makers of such arguments are betraying such poor regard for life, then, I'm afraid, they are not distinguishing themselves from the criminals, and the criminality, that they despise. Remember, they too committed the crime because of lack of regard for human life and dignity. If this kind of retributive view is to be given greater currency, it's nothing but inviting greater criminal assaults by lowering the dignity of human beings. The aim of punishment is prevention of future crimes, and to aid in reform. The aim is never revenge. No matter how abhorrent the crime, that principle never changes. I'll repeat here -- the outrage that people are showing in the clamour for death penalty is nothing but a hogwash, apart from the fact that it's a product of stilted thinking. Nine out of ten such 'outraged' people won't even show up to give witness if called upon -- the responsibility is always somebody else's -- police, politician, the other guy, everyone else but me -- I should just be spared the inconvenience. 

Saying that a person is irrationally and outrageously brutal and hence deserves to be killed betrays complete ignorance of human nature. Every single person on earth is capable of turning irrational at one point or the other. Under the influence of loads of alcohol or drugs, or under extreme stress or duress, any kinds of crimes can happen. While it's natural for people to burn with outrage -- my own blood is boiling, mind you -- it's not good sense to decide or advocate policy matters under such conditions. An outraged mind loses the capacity for rationality, just like an inebriated mind does. 

The outrage needs to be channelized towards effective action. What India needs is a 911 system. The police have to be forced to attend to every single 911 call, no matter how often it comes, and whether or not danger was indeed present. They have to be taken to task, if they fail to do it a single time. The traffic policing system needs to be made stringent. 99% of Indians openly defy traffic laws, without feeling the slightest twinge of compunction. That's what breeds contempt of the law in everybody's mind, the fallout of which is atrocities like the current one. Instead of calling for death penalty, call for inevitable punishment every time the law is violated, even in the slightest of manner.

The right response against rape incidents is to simplify the process of conviction. Just the victim's statement and some corroborative evidence should lead to swift and inevitable conviction, no matter who the accused, how rich or politically connected. Ease the process. No humiliating interrogation should be imposed on the victim, and no long trial process. The law automatically becomes much stronger and more effective, if the burden of proof of innocence be left on the accused in such cases. I don't think society has any sympathy for such people to grouse that. A death penalty is needless. What we need is close to 100% conviction rates, not the paltry 26% that we have now, which is the root of all ills. Assaults against women should be tried in special, dedicated courts, with strong bias in favor of the victims. It does not matter even if some innocents are convicted. So long as it's not death penalty, it's tolerable. No honorable person would ever get into such a situation, where such an accusation can be made. Therefore, if such an accusation is indeed made, let the accused prove innocence incontrovertibly or face prison. The degree of punishment would be proportional to the availability of evidence, circumstances and the gravity of the crime, but the conviction rate should be 100%. The definition of life-term should also be enhanced to mean at least 25 years in prison. A death penalty would actually be counterproductive, in that it'll become an impediment to fast-tracking, and even to conviction, since the prosecution will now have to incontrovertibly prove the guilt.

The death penalty is nothing but a shortcut, that people who don't want to work hard enough for a goal, want to utilize. You know why that Delhi Police Commissioner is advocating the death penalty...? So that people are not up in arms against him, and making his life hell, demanding greater patrolling and security measures. That is too much work for him -- he prefers the shortcut, so that he can relax that now the ball is in someone else's court. This guy who committed the crime didn't become a monster one fine day. He's become so by repeatedly making violations, starting small and gradually getting more and more emboldened because of having successfully evaded penalty for all his lesser infractions. It's the whole society with its love for shortcuts which is to blame for his developing into this monster. Not just him alone.

Police wardens on the deterrence value of death penalty:

The following quote from Donald Cabana, once warden of a prison in Parchman, Mississipi sums it up well:

"The flames of the capital punishment solution are fanned by misleading political rhetoric and journalistic sensationalism."

It's not just the voice of one policeman. A large number of wardens who have been intimately involved with executions have opined that the death penalty prevents nothing. In fact, preventing substance abuse (drugs, alcohol...) ranks highest as preventive measure for crime.

"I do not now believe that any one of the hundreds of executions I carried out has in any way acted as a deterrent against future murder. Capital punishment, in my view, achieved nothing except revenge."
-- Albert Pierrepoint, Britain's hangman for 25 years.

"I talked with a former Los Angeles County deputy sheriff who was condemned for murdering his wife. He told me, 'I never once thought of the death penalty. And I should have known if anyone does,' the man said. I personally asked every man and two women at whose executions I officiated and they all answered they did not think of the possibility of execution."

"...persons who are strongly in favor of the death penalty abruptly change their minds when a member of their family is concerned. 'It's good enough for some else, but not good enough for me!'"

-- Clinton Duffy, warden at San Quentin, California prison, who officiated over 90 executions 


To wrap up, it'll be good to revisit the fact that the deterrence comes from the certainty and swiftness of apprehension and conviction, for any crime committed, big or small. Not through the egregiousness of the quantum of punishment for egregiously brutal crimes. Call for death penalty, instead of the more painstaking route of capturing and penalizing law violators at all levels, is nothing but a self-seeking indulgence. It's bereft of any merit as deterrent, and completely pointless. We must all keep away from the temptation of sitting in judgment of others' crimes. Justice is not something that humans can ever deliver, least of all a few people sitting on some chairs, whether in courts or television studios. To assess correctly one needs to appreciate the full picture, and to capture the entire picture requires a much broader, fuller and deeper perspective than is observable in penal practice, or even humanly possible. Leave that to what is called as god.

It must also be understood that responsibility is collective. Whatever good that comes out of humans -- the great discoveries, literature, art, science, technology, medicine, caregiving, sacrifice -- are a product of society as a whole, not merely the achievements of individuals. Similarly, whatever abominable comes out -- the brutalities and injustices -- are also the doing of society as a whole. It's not merely the doing of particular individuals -- take the chain back long enough, and you'll find that everyone's hand is dirty.

Therefore, one must confine the purpose of law to an essentially practical one -- of maintaining order in society, and prevention of violation of the freedom of citizens. "Delivering justice" is a meaningless pursuit, impossible in the human realm. We can only keep a semblance of it, that too through the application of appropriate rigor. Capital punishment is nothing but consensual murder by society at large. It perpetuates the same violent instincts which lead to crimes being committed in the first place. Let's not fool ourselves that killing a criminal brings "justice" and "compensation" for the victims. The victims' loss is irreparable, even if they think otherwise and clamor for the death penalty. Compensation should be delivered in a positive manner -- restorative, not retributive.

Those enamored of delivering justice through capital punishment could do well to remember that sage Valmiki too was a robber in his early life who used to plunder and kill passers by. What if he too had been delivered justice so...?

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