By Ankita Singh, RMLNLU
Over time, the death penalty has been a debatable issue in the criminal justice system. There are numerous pro and anti-death penalty perspectives that fight each other in the vague of providing justice to the victims. But is retribution justified and deterrent effect successful in providing justice remains a debatable issue. The cost of execution remains debatable again, considered one among the reason whether to execute or not. The proponents and opponents argue if it leads to cruel and unusual punishment violating a nation’s constitution. The fairness of execution also lies in the witness box both on legal and socio-political grounds. The opponents argue on moratorium on executions and instead provide with the alternatives to death penalty. The execution of the innocent is always a jeopardy rendering instances of spurious decisions made leading to conviction and execution of the innocent. Another aspect that sets a person on the ground of execution is a lawyer’s skill. Acceleration of execution and limiting appeals is a call in favor of the death penalty. All the grounds contemporary with the issue needs to be dealt with as is the need of the hour.
This fight between the proponents and the opponents of the death penalty has heated up the debate furthermore as to whether the death penalty should be considered penal or not. From the ancient time, capital punishment has been in existence for various crimes and a large rate of executions has been done so far. But, what effect does it leave on the mind of the criminals, the society, the victims and the ones who award death penalty and what physiological and social repercussion aroused from the legal jurisdiction does death penalty has over the minds of the people would be discussed herein.
ANCIENT AND MEDIEVAL TIME SYSTEM OF CAPITAL PUNISHMENT
The Death Penalty has been given to the wrongdoers since the ancient time. In the 18th century BC, the code of King Hammurabi of Babylon codifies the death penalty for twenty-five different crimes, although murder was not one among them. The first historically recorded was in 16th century BC in Egypt, where the wrongdoer was accused of magic and was ordered to take his own life. In 14th century BC, the Hittite code provided with death penalty and so does the Draconian code of Athens in 7th century BC, wherein the Draconian law provided death penalty for every crime committed. In 5th century BC, the Roman law of twelve Tablets codified death penalty. The punishment for the nobility, freemen, and slaves were different and was punishment for the crimes of publication of libels and insulting songs, perjury, making disturbances at night in the city, wilful murder of freemen or parent, theft by slave, and others.i Death was often cruel, that included crucifixion, drowning at sea, burial alive, beating to death, implement, and for parricides (murder of a parent), and the punishment was given in the form by submerging in water in a sack with a dog, a rooster, a viper, and an ape.ii Mosaic Law also codified many capital crimes. The most infamous execution of history occurred approximately 29 AD with the crucifixion of Jesus Christ outside Jerusalem. Later, after 300 years, Emperor Constantine abolished crucifixion after converting into Christianity.iii
In Britain, during the middle ages, capital punishment was accompanied by torture. For example, in 1279, two hundred and eighty-nine Jews were hanged for clipping coin. Under Edward I, two gatekeepers were killed because the city gate was not closed on time and the accused murderer escaped. Burning was punishment for women’s high treason and men were hanged, drawn or quartered. Boiling to death was another penalty approved in 1531, and there are records to show some people boiled up for up to two hours before death took them.iv
In 1823, reforms began taking place, exempting about a hundred crimes from death penalty. In 1840, there was a failed attempt at abolishing all capital punishments. Through the 19th and 20th centuries, more and more capital punishments were abolished, not only in Britain but also all across Europe.v
The first recorded execution in America took place in1608. In 1622, the first legal execution of a criminal, Daniel Frank, occurred in Virginia for the crime of theft.vi Under the Capital Laws of New-England that went into effect between 1636-1647 the death penalty was meted out for pre-meditated murder, sodomy, witchcraft, adultery, idolatry, blasphemy, assault in anger, rape, statutory rape, manstealing, perjury in a capital trial, rebellion, manslaughter, poisoning, and bestiality. By 1780, the Commonwealth of Massachusetts only recognized seven capital crimes: murder, sodomy, burglary, buggery, arson, rape, and treason. vii The first reforms of the death penalty occurred between 1776-1800, with a proposal of death penalty for only treason and murder.
On Crimes and Punishment, published in English in 1767 by the Italian jurist Cesare Beccaria, said that the death penalty was “a war of a whole nation against a citizen, whose destruction they consider as necessary, or useful to the general good.” He said that the history of using punishment by death had not prevented determined men from injuring society and that death was only a “momentary spectacle, and therefore a less efficacious method of deterring others, than the continued example of a man deprived of his liberty….” viii
PRESENT SYSTEM OF CAPITAL PUNISHMENT
From quite a long time, there have been attempts made in different places of the world to liberalize capital punishment and reduce the number of crimes for which capital punishment may be given. The present scenario focuses on whether capital punishment should be given at all. Many nations of the world have completely banned capital punishment from their penal code. Yet, there are nations who still continue with the system of capital punishment and are in favor of it. More than two-thirds of the countries in the world have now abolished death penalty in law and practice. There are a few categories under which the nations have been divided as to the abolition of capital punishment, which are as follows:
Abolitionist for all crimes:
Nations whose laws do not provide for death penalty for any crime come under this category. There are in total 97 nations that have abolished capital punishment at all. Italy, UK, South Africa, Switzerland are a few examples.
Abolitionist for ordinary crimes:
Countries whose laws provide for death penalty only for exceptional cases such as crimes under military law or crimes committed in exceptional circumstances. Up till 8 nations have been categorized under this category so far. Bolivia, Brazil, Chile, EI, Salvador, Fiji, Israel, Kazakhstan, and Peru are the countries falling within this category.
Abolitionist in practice:
Countries which retain the death penalty for ordinary crimes such as murder but can be considered abolitionist in practice in that they have not executed anyone during the past 10 years and are believed to have a policy or established practice of not carrying out the executions. The list also includes countries which have made an international commitment not to use the death penalty. There are in total of 35 countries under this category. Russian Federation, Sri Lanka, South Korea, Central African Republic are a few nations that come under this category.
Another category is that of the receptionist, who is contrary to the abolitionist.
Countries and territories that retain death penalty for ordinary crimes are the retentionist countries. Afghanistan, Egypt, China, India, Indonesia, Iran, Iraq, Malaysia, Pakistan North Korea and the United States of America are a few examples that believe in the retention of death penalty and are still practicing it as a punishment.
2. CAPITAL PUNISHMENT SYSTEM IN DIFFERENT PLACES
CAPITAL PUNISHMENT IN INDIA
In India, in 1814, there were three cases of boys of eight, nine, and eleven years who were hanged. However, today there are very few crimes for which death penalty is imposed. Four characteristics of capital punishment may be pointed out or our country:
(1) Capital punishment is given only for (selected) seven crimes.
(2) Hanging in the presence of the public is totally abolished.
(3) No painful methods are used in executing death sentence.
(4) Capital punishment is awarded only by a governing authority.
The Indian Penal Code recognizes capital punishment under eight sections (121, 132, 194, 302, 303, 305, 307, and 396) for different offenses. The first successful effort for abolishing capital punishment in India was made in Travancore in 1944 but it was reintroduced in 1950. The number of persons awarded capital punishment by the courts in Travancore was 159 in 1950,168 in 1951 and 170 in 1952.
In 1956, a bill was introduced in the Lok Sabha by one Agrawal for abolishing capital punishment but it was rejected by Parliament in 1961. The then Deputy Minister for Home Affairs (Mrs. Violet Alva) intervening in the debate on the resolution had said:
A correct assessment of the situation in the country rather than sentiment should guide our approach to this question. Since the crime situation continues to be serious, the time was not ripe to do away with capital punishment, though principles underlying the demand for its abolition may be accepted.ix
CAPITAL PUNISHMENT IN USA
As of April 1, 2008, the Death Penalty was authorized by 37 states, the Federal Government, and the U.S. Military. Those jurisdictions without the Death Penalty include 13 states and the District of Columbia. (Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, New Jersey, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin).
In 2008, the Nebraska Supreme Court ruled that the use of the electric chair as a method of execution violated the Nebraska Constitution. With no alternative method of execution on the books, Nebraska is practically without a death penalty. In 2004, the New York Supreme Court ruled that the existing death penalty procedures violated the New York Constitution. The New York legislature has made no effort to change the procedures, effectively eliminating the death penalty in the state.
Before 2011, several states used the anesthetic sodium thiopental as part of their lethal injections. But Hospira Inc halted production of the drug that year, forcing states to look elsewhere for drugs that could be used for lethal injections. This other option was pentobarbital, but now states are figuring out how to still carry out the death penalty without their drug of choice.
CAPITAL PUNISHMENT AT INTERNATIONAL LEVEL
Capital punishment internationally has taken a great debate. Many countries have devoid death penalty from its penal laws taking into the consideration that death penalty invokes the breaking of the fundamental laws of a person.
Although less structured than elsewhere, sentencing in Ireland is not devoid of principles. Perhaps the most important one is that the punishment must be proportionate to the gravity of the offense and the personal circumstances of the offender.
While this principle is simple to express, the balance it entails is difficult to strike and constitutes the nub of the sentencing dilemma. What weight should be given to the harm done (or risked) and the offender’s state of mind? How should the assessment of seriousness be influenced by socio-economic factors, expressions of remorse, the victim’s view, and the choice of plea? Where should the penalty scale be anchored and how can crimes be ranked?
In addition, should consideration be given to previous convictions or predictions of future dangerousness? The horrific killing of Jill Meagher in Australia by a convicted multiple rapists on parole shows that recidivist offenders are a problem everywhere.
At the heart of the proportionality principle is the need to hold in view simultaneously the offense and the offender. Such a requirement allows a degree of latitude that would be considered unacceptable in other jurisdictions.
But discretion allows for compassion and the limiting of one can lead to the extinguishment of the other. What is valuable about the situation in Ireland, despite its limitations, is that space remains for the kind of humane response that renders sentencing individualized and just. The flipside, of course, is that unfettered discretion permits excesses of severity and leniency.
As the Law Reform Commission outlined this week in its latest report, the solution is to create a context where justice is transparently fair. This requires discretion underpinned by principles rather than hemmed in by rules.
The commission also expressed concern about the plight of life-sentence prisoners and recommended that they should be given an indication of how long they are likely to serve when they are sentenced and that the timing of their release should be considered by an independent parole board.
The most satisfactory approach to the punishment of offenders is one that retains sufficient flexibility to keep justice to the fore but where the decision-making process is clear and consistent. Vital to any such approach is the provision of information about the actual sentencing practice.
Judges are resistant to any initiative that might seem to weaken their independence. But the provision of better information about what they do, and why, could have the opposite effect. If the rationale for sentencing was elucidated, divergent outcomes would be less confusing and, probably, less controversial.
3. DEATH PENALTY AND THE INDIAN CONSTITUTION
DEATH PENALTY AND ART. 21 OF THE INDIAN CONSTITUTION
Art. 21 of the Constitution of India lays down that no person shall be deprived of his life or personal liberty except according to the procedure established by law. In this, Art. 21 directly talks about the death penalty provided, which is also mentioned in the provisions of the Indian Penal Code.
DEATH PENALTY AND ITS VALIDITY IN THE INDIAN CONSTITUTION
The question of the validity of death sentence has been raised before the Supreme Court several times vis-a-vis Arts. 14, 19 and 21. The court agrees with the proposition that death penalty deprives a person of his right to life and other fundamental rights, and thus the validity of such a punishment can be tested with reference to Art. 14, 19 and 21. Art. 14 is an assurance of non-arbitrary and civilized punitive treatment. Art. 19 is based on the reasonableness of deprivation of freedom to live and exercise the seven liberties guaranteed therein. Art. 21 guarantees fair procedure.x
Art. 14 ensures that the death penalty imposed is not arbitrary and indignant. Ordinarily, for murder, life imprisonment is applicable where death penalty is imposed. Death penalty is only imposed when it is against the public interest, social defense, and public order. One thing which is important to note down is Special reason is required for imposing death penalty and that it should relate to the criminal and not to the crime committed. But this extreme penalty can be invoked only when an extreme situation arises. The same question of the constitutionality of death penalty arose in the case of Bachan Singh v. State of Punjabxi, where it was opined that provision of death penalty is not unreasonable and in Public Interest.
As per Art. 19 of the Constitution, a law is abridged only is Direct and Inevitable Consequences arises” and in such a way that it abridges freedom guaranteed under Art. 19(1). The court asserted that penal laws which define offenses and prescribe punishments for the commission of offenses do not attract Art.19(1) as these are not laws having direct consequences on the rights conferred by Art.19(1).xii Deprivation of freedom consequent upon an order f conviction and sentence is “not a direct and inevitable consequence of the penal law” but “is merely incidental to the order of conviction and sentence which may or may not come into play”, i.e. which may not be passed.xiii The penal laws do not attract Art.19(1) as they do not come under its subject matter and do not require to prove any test of Art. 19(1). The 35th Law Commission Report also suggests the continuance of death sentence.
The validity of death penalty is again supported under Art.21 of the Constitution as an alternative punishment. But the punishment of death penalty is only to be provided only in cases of exception, rather being used as a rule and is imposed only in the ‘gravest of cases of extreme culpability’ or ‘rarest of the rare’ cases. This is because the State has the right to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure as being stated in the Art.21 as ‘according to the procedure established by law’. Thus, provision established in the Criminal Procedure Code for imposing capital punishment does not adhere to unfairness and unreasonable code. Supreme Court in the case of Allauddin Mian, reiterated that only in exceptional cases where the crime is so brutal as to shock the collective conscience of the community, would be permissible to award death sentence. Again in Machhi Singh v. State of Punjabxiv, the Supreme Court opined that capital punishment need not be inflicted except in the rarest of the rare cases and stated life imprisonment to be a rule and death penalty an exception. Further, the Supreme Court laid down guidelines for determining rarest of the rare cases for awarding death penaltyxv:
Whether there is something uncommon about the crime which renders life imprisonment sentence inadequate and calls for a death sentence?
Whether “the circumstances of the are such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favor of the offender?
VARIOUS CASE LAWS
Jagmohan Singh v. State of Uttar Pradesh
The question on the constitutional validity of death sentence has been raised before the Supreme Court several times under Arts. 14, 19 and 21. It was argued that right to live under Art.19 is basic to the enjoyment of all these freedoms and therefore, freedom to live could not be denied by law unless it is reasonable and in public interest. The Court’s response to this argument was that assuming the argument to be correct, Sec. 302 of IPC, which prescribes death sentence for murder passes this test. Therefore it is difficult to say that capital sentence as such is unreasonable or not in public interest. Adequate procedural safeguards have been provided to the accused under the Criminal Procedure Code.
Rajendra Prasad v. State of UP
Here the constitutional validity of the death penalty that was questioned was upheld. The court here agreed with the proposition that, as death penalty finally deprives the accused of his right to life and other fundamental rights, the validity of such punishments can be tested with reference to Arts. 14, 19 and 21.
Bacchan Singh v. State of Punjab
Here in this case, because of some difference in views expressed by the Supreme Court Judges in Jagmohan and Rajendra case, the question of reasonableness of death penalty was again raised before the Constitutional bench of the Supreme Court. Again the court opined by majority that the provision of death penalty, as an alternative punishment for murder in Sec. 302 of IPC is not unreasonable and is in public interest. therefore, Sec. 302 does not violate the letter or ethos of Art.19.
The court also opined that penal laws which define offenses and prescribe punishments for the commission of offenses do not attract Art.19(1).
Article 21 clearly brings out the implication that the Founding Fathers recognized the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law. There are several other indications also in the Constitution which show that the Constitution makers were fully cognizant of the existence of death penalty for murder and certain other offenses in The Indian Penal Code. Entries 1 and 2 in the Concurrent List of the Seventh Schedule specifically refer to the Indian Penal Code and the CrPC as in force at the commencement of the Constitution.
Under the successive Criminal Procedure Codes which have been in force for about 100 years, a sentence of death is to be carried out by hanging. In view of the aforesaid constitutional postulates, by no stretch of imagination can it be said that death penalty under section 302, Indian Penal Code, either per se or because of its execution by hanging, constitutes, an unreasonable, cruel or unusual punishment. By reason of the same constitutional postulates, it cannot be said that the framers of the Constitution considered death sentence for murder or the prescribed traditional mode of its execution as a degrading punishment which would defile “the dignity of the individual” within the contemplation of the Preamble to the Constitution. On parity of reasoning, it cannot be said that death penalty for the offense of murder violates the Basic Structure of the Constitution.
Held: Section 302 of the Indian Penal Code insofar as it provides for the death sentence as also section 354(3) of the Code of Criminal Procedure, 1973 is constitutionally valid.
An exercise of discretion under section 354(3), Cr.P.C. should be in exceptional and grave circumstances and the imposition of death sentence should only be in rarest of rare cases.
4. SOCIO-POLITICAL, LEGAL AND PSYCHOLOGICAL REPERCUSSIONS
All punishments are based on the same simple proposition that there must be a penalty for wrongdoing. Thus there must be death penalty applied for the offenses or crimes done heinously. This has been the foregone proposition of the minds of the people since ancient times. On the face of it, the deliberate act of killing a human being seems both brutal and uncivilized, regardless of the identity of the victim. Killing is a violent act after all and is forbidden by every major religion. “Thou shalt not kill”, for example, is a commandment in both the Jewish and Christian faiths, accept at least in the need of war.
But the pragmatic reasons put forward for capital punishment have to do with the protection of society. Thus there have been arguments from both the sides, being anti and pro for the infliction of death penalty over a person committing heinous crimes in the most heinous ways. The pro-death penalty thinkers take a foremost stand of Deterrence when favoring death penalty as a punishment. Robert E. Crowe, the Illinois State’s attorney demanded death sentence for the notorious murderers Nathan Lepard and Richard Leob saying, “I urge capital punishment for murder, not because the society wishes to take the life of a murderer, but because society does not wish to lose its own. It is the finality of the death penalty which instills fear of punishment which protects society.”xvi
In other words, Crowe wanted the murderers to die, not to protect the society from them but to protect society from others who might come after them. Another argument of deterrence arguments applies to the criminals who have already received the harshest of punishment available under the law short of death, but still pose a threat to the society, that being under the prison commits murder of both prison guards and inmates. There is no further punishment that one can receive in this particular case.
Another reason put forward is the Sense of Justice. As explained by professor Ernest Van Den Haag, a person should be punished not just because of deterrence but also because of the sense of justice, i.e. a man who is committed a crime must be punished in proportion to the seriousness of the crime. Since the crime that takes life is irrevocable, so must be the punishment.xvii The punishment of death penalty does not depend on logical arguments but on a deep sense of justice- sense that death is only punishment truly fitting for crimes too monstrous to be dealt with in any other way.
Another aspect that went on through the ages is the retribution effect. This gives the affected person a sense of justice. The instinct for retribution is part of the nature of man and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. Keeping Order has always been a priority and a way of keeping the society in an orderly fashion, and thus the law never refrained from giving death penalty to the criminals. “When people begin to believe that organized society is unwilling or unable to impose upon the criminal offenders the punishment they deserve then there are sown the seeds of anarchy- of self-help, vigilante justice and lynch law.”
But the opponents have a different view altogether regarding the death penalty given to the criminals. The proponents argue that giving death penalty is cruel and is by any means shall not be a way of penalizing a criminal. Along with that, they give several reasons as to why death penalty should not be inflicted upon any person. Both the opponents and proponents of death penalty complain about the capricious way in which death sentences seem to be imposed and carried out. Death penalty is being applied inconsistently even in the times of present. This is an old problem and is getting worse. Even within a single jurisdiction, people who commit virtually identical crimes receive death or prison terms unpredictably.
Even criminals who commit the same crime may receive different punishments. Some of the inconsistency is deliberate. According to Adam Bedau, “Discretion in the criminal justice system is unavoidable”. Society clearly wishes to mitigate the harshness of capital punishment by allowing mercy for some persons. But when discretion is used, as it has always been, to mark for death the poor, the friendless, the uneducated, the members of racial minorities or minorities considered in the way of caste, creed, and religion, the despised, the discretion become injustice. For any punishment to be truly just, says the critics, it must be dispatched in a fair and even-handed manner.
The more severe the punishment, the greater the need to apply it consistently. If the great majority of those who theoretically deserve to die are spared, it seems manifestly unjust that a handful of others are not. This unfairness is made worse, opponents of capital punishment say when the small number of those who are forced to suffer the ultimate penalty is so often black, poor, or mentally ill.
No issue is more troubling to abolitionists and retentionist alike than the possibility that the state might execute an innocent person. This possibility is alone is frightening enough to convince some people that capital punishment should be abolished. In 1987, Hugo Adams and Michael L. Radelet published the results of a study in which they named 350 people who were wrongfully convicted of capital crimes between 1900 and 1987. In India itself, the accused gets a death penalty with biasness, the most vulnerable being the poor section of the society who are helpless and do not have any means to get themselves a fair trial or even expect fair justice even if a government lawyer is appointed to them. Whereas, in certain cases, the defendant side becomes all the more so important and powerful that providing the accused with a death penalty becomes almost an impossibility and the trial goes on for years even in the apex court.
“A government that persists in retaining these horrible punishments” wrote a nineteenth-century English philosopher Jeremy Bentham, “can only assign one reason in justification of their conduct: that they have already so degraded and brutalized the habits of the people that they cannot be constrained by any moderate punishments.”xviii
George Bernard Shaw states that it is a deed that teaches, not the name we give it. Murder and capital punishment are not opposites that cancel each other but similar that breeds their kind. Abolitionists would say this all demonstrates something Bentham pointed out nearly 200 years ago: the most savage banditti are always to be found under laws the most severe, and it is no more than what might be expected. The fate with which they are threatened hardens them to suffering of others as well as their own. They know that they can expect no lenity, and they consider their acts of cruelty as retaliation. Whether or not capital punishment brutalizes society, it is certainly a burden on those who have to carry it out. Execution is an abominable thing.
Those who do not become brutalized by carrying out the death penalty often joins the abolitionist cause. Historically, many prominent opponents of capital punishment came from the ranks of prison wardens, executioners, and others who have assisted in the application of the death penalty. In Britain, even Albert Pierrepoint, who bragged about being the most prolific executioner in modern British history, eventually became convinced that the death penalty was a mistake.
Many times, the law and order due to its incapability and the loopholes lead an incompetent mind and drag him into the vicious circle of death penalty to hold on. Even some confirmed retentionist are troubled by the fact that e persons who are not fully responsible for their act are driven to the stage of death penalty: the mentally ill, the retarded, and young people under eighteen. Insanity is, in itself, a defense against a criminal charge, even a charge of murder. In most jurisdictions, defendants so mentally ill at the time of the crime that they are unable to understand the nature and consequence of their actions will be found innocent “by reason of insanity”, innocent in such cases, is a technical term.
Defendants found innocent for this reason can still find themselves confined for long periods. When it comes to capital punishment, the defendant’s mental condition at the time of the crime is not the only issue. Even a defendant who was legally sane when he or she committed a crime cannot be executed if he or she is found to be insane at the time of execution. One of those insane people was Morris Mason, a black man who had raped and murdered a white woman in Virginia. He was executed in 1985 and was thirty-two, even though he had been diagnosed as a paranoid schizophrenic on three occasions by three state mental institutions. Some condemned criminals who are no longer children in a physical or chronological sense are still children mentally and emotionally. Some death row inmates are so retarded that they are virtually unable to understand their situation.
As much as the mentally ill and the retarded are being in the death penalty box, the young too are not any safer. A person under the age of majority by law cannot be executed and yet there have been instances where the minority stood on the death toll.
Apart from all the arguments laid by the opponents and the proponents, the political question always drool over, whether capital punishment should continue or not? Along with that, there has been political pressure from the inner circle to whom to execute and to relieve from such a fate. In Ajmal Kasab case, Ajmal was held captive within the boundaries and under protection for almost two years, saving him from death penalty due to political grounds that this might worsen the relation between India and Pakistan. But how long was he to be kept alive, he was ultimately given death penalty for the act he did. The question here arises, whether or not such criminals with such a criminal mind should be given death penalty or should he not be. This question often leads us into the situation of giving a criminal the penalty of life imprisonment as an alternative rather than a death penalty. The alternative seems to be more just and righteous when considering the fact that death penalty is rather a brutal and barbaric way of penalizing a criminal.
All these factors when considered leaves an impression of a criminal actually being a victim of the law and order and leaves a psychological impact over their minds. They are traumatized by the events of happenings. Not that they have committed a heinous crime and hence should not be punished, but that they should rather be punished in a manner that does not traumatize the minds of these victims alongside the public. The hind side though says something else, that they need to be punished as heinously as they committed the crime and that the public or the society wants these criminals to suffer their fate.
ACTORS IN THE PROCESS OF APPLYING DEATH PENALTY
Actors in the process of applying death penalty are a very vital factor. It depends on these actors only whether to provide an accused of the death penalty or not or whether an alternative punishment is would be regarded as a better punishment. These actors include the lawyers, the jury and the judge. Arbitrary results, which are very common in the death penalty cases stem from the inadequacy of counsel. This inadequacy might result in the execution of the innocent, minor or mentally retarded. Some of the drawbacks of the lawyers that make them noncompetent to a case or in fact to be a lawyer especially concerned with the death penalty cases are the failure to bring critical information, failure to produce competent and expert witnesses and quality legal representation.
This often shows a lack of skills, resources, and commitment to handle such serious matters. Often, poor people become prey for it having a lack of monetary resources. For instance, the woman in Talladega, like any other person facing death penalty who cannot afford counsel, is entitled to a court-appointed lawyer under the Supreme Court’s decision in Powell v. Alabama.xix These lawyers often appointed by the court itself lack of skills, resources, and commitment usually due to disinterest. Another instance when counted upon, the failure of defense counsel to present critical information about the accused, Horace Dunkins that he was mentally retarded, lead to the sentence of death of him in Alabama.xx
Though by law, jurors make the life or death sentencing decision at a separate penalty trial after the determination of guilt in accordance with carefully drawn sentencing instructions. These sentencing instructions are intended to guide the exercise the sentencing discretion by articulating those aggravating and mitigating considerations that are relevant to this decision. In this way, the exercise of capital sentencing discretion is to be guided and thus freed of constitutionally impermissible caprice, arbitrariness, and discrimination.xxi It so happens many times that the incompetence or the competency of the counsel leads to the conviction of an innocent of acquittal of the criminal. The chain reaction that occurs in the process is the mindset of the jury and that how much they are convinced by the counsel. As in the Horace Dunkin case, at least one of the jury said that she would not have voted for death sentence of Horace had she be knowing of the mentally retarded state of him.
PSYCHOLOGY OF THE OFFENDER
The psychology of the offender is different from each other depending upon the mind of the offender. A mentally ill criminal who does not know the nature and the consequence of the crime that he has committed is not liable for death penalty in any case as he being of unsound mind is not capable of understanding the nature of the act. Mason Morris’s case was one such example where he raped and murdered a woman in Virginia and yet did not know the nature of the act, the proof of which is shown by three state mental institutions.
Again, another category is of the mentally retarded persons, where the mental capacity of a grown-up person is of a child and is again not in a position to understand the nature and the consequence of the act that he has committed. The IQ level of such persons is as below as 50. Some death row inmates are so retarded that they are virtually unable to understand their situation. “Am I going with you? One asked hopefully when a visitor rose to leave after interviewing him.
Another who was scheduled to die on a Friday evening, put aside the desert he was given along with his traditional last meal because he intended to eat it later as he thought he would be retuning back on Saturday morning, not realizing that he was in fact taken for the death punishment. Death penalty to a minor also leaves a negative impact on the minds of the young that they might get hanged for the act committed though they are not constitutionally eligible to be hanged.
Again the psychology of the people belonging to the poor sections and the people who belong to the minorities knowing they are prone to the effect of the death penalty being imposed on them have a sense of fear and less hope regarding being saved from the virtue of death penalty. The one who has been convicted of death penalty is always in a sense of fear. They become more sensitive towards what is going to happen to them and react either vehemently, targeting their other inmates and constables or get drown into fear that changes their whole behavior.
Death penalty since the ancient times has affected many people, often the innocent ones and has inflicted pain upon numerous people, especially some targeted ones such as the people belonging to the poor section or the people of racial, caste, creed and religious discrimination. The crimes for which the death penalty has been provided though has decreased in number, but the fear of convicting the innocent still hangs out in the air. The proponent and opponents, both have their own arguments for death penalty. The need of the hour now has changed. With the changing circumstances, there is a need to change the penal laws as well regarding death penalty.
Instead of providing a convict with a death penalty, an alternative is well taken, the alternative of life imprisonment, improved law enforcement, and rehabilitation. Though many people mistrust life sentence as prisoners’ sentenced to life can eventually become eligible for parole. But it is rather better to give a person life sentence than a death sentence which is completely barbaric and cruel. Another advantage is that no innocent life would be taken and if it deems fit, the person may be put in parole, as only the reformed person can only be put on parole. For abolitionists, the most promising alternative to death is rehabilitation that could reform a prisoner. Rehabilitation does not necessarily mean release. Although it may be preferable to release those who are truly reformed, if there is any doubt, they can continue to be confined. As pointed out by Warden Osbourne, it is possible for a criminal to do good “to make balance…even in prison”.
Edited by Saksham Dwivedi
foratted on 16th Feburary 2019.
i Society’s Final Solution: A History and Discussion of the Death Penalty, Laura E. Randa, ed., University Press America, Inc., 1997
ii John Laurence, A History of Capital Punishment (N.Y.: The Citadel Press, 1960), 1-3.
iii Michael Kronenwetter, Capital Punishment: AReference Handbook (Santa Barbara, CA: ABC-CLIO, Inc., 1993), 72.
iv Ibid., p.72
v John Laurence, A History of Capital Punishment (N.Y.: The Citadel Press, 1960), 9-14.
vi Hugo Adam Bedau, The Death Penalty in America (N.Y.: Oxford University Press, 1982).
vii Ibid., 6
viii Cesare Beccaria, On Crimes and Punishment, trans. Henry Paolucci (Indianapolis: Bobbs-Merrill, 1963).
ix The Hindustan Times, September 10, 1961
x Rajendra Prasad v. State of Uttar Pradesh, AIR 1979 SC 916
xi AIR 1980 SC 898
xii M.P. Jain, Indian Constitutional Law (Vol. 1, 5th edn., Wadhwa and Company Nagpur, 2003) 1297
xiii M.P. Jain, Indian Constitutional Law (Vol. 1, 5th edn., Wadhwa and Company Nagpur, 2003) 1297
xiv AIR 1983 SC 947
xv M.P. Jain, Indian Constitutional Law (Vol. 1, 5th edn., Wadhwa and Company Nagpur, 2003) 1298
xvi Congressional Digest, “Capital Punishment,” 228
xvii David l. Sills, “Capital Punishment”, International encyclopedia of the Social Sciences( 1st edn., New York: Mcmillan & Free Press, 1968) 293.
xviii Michael Kronewetter, Capital Punishment: Capital Punishment in Context (2nd edn., New York: Mcmillan & Free Press, 1996) 67
xix 287 U.S. 45 (1932)
xx Peter Applebome, Two Electric Jolts in Alabama Execution, N.Y. Times, July 15, 1989, at A6
xxi Austin Sarat, Capital Punishment: The interpretational Library of essays in law and society (Vol. 2, 1st edn., Ashgate Publishing Limited, 2005) 83.