Capital punishment also called the death sentence is a process in which the state uses its power to condemn the actions of the convict by sentencing them to death. The first recorded instance being that of Hammurabi in the 18th Century B.C. Throughout history, the state has used capital punishment for a variety of crimes, ranging from minor offences like stealing to more serious and terrible crimes like rape, murder, and high treason.
The primary goal of any country’s criminal laws is to reform criminals rather than punish them. However, it is also the role of the same state to safeguard the interests of the whole society and to reaffirm the population’s trust in the judicial system, and death punishment may be one way to accomplish this. The death penalty issue has been increasingly heated in recent years. While proponents of the death penalty argue that it should only be used for the most egregious offences, human rights advocates argue that the death penalty violates an individual’s basic human rights. The purpose of this paper is to explain why the death penalty should be abolished in India.
The validity and ethicality of capital punishment have long been debated, with proponents offering arguments based on the contrasting rationales of vengeance and utilitarianism. The supporter of the Utilitarian theory says that the state is totally justified in imposing capital punishment because it has a deterrent effect on crime whereas the Retributivist argue that the death sentence is justified regardless of its deterrent effect on crime because all wrongdoing must result in some form of punishment, regardless of any extrinsic consequences. However, it raises important doubts regarding the state’s ability to carry out death punishment. Is it morally acceptable? Why should the state be allowed to take a life that it cannot provide? I will try to answer these questions by looking into the arguments made by retributivists and utilitarians in an attempt to answer these problems.
Theory of Retribution
The retributivist concept of justice is primarily supported by the biblical principle of lex talionis( “eye for an eye”), which advocates for punishment that is both proportional in kind and degree to the harm perpetrated on a victim. This idea of justice can be found in the early code of Hammurabi. Although Hammurabi didn’t establish the concept of retribution, Hammurabi Law’s is based on this theory. This theory says that when one commits a crime or breaks the law, justice only prevailed when the one suffers in return and the punishment is proportional to the crime. One of the most prominent supporters of retributivism, Immanuel Kant stated that “Judicial punishment is categorically imperative”. He was against any utilitarian motive while deciding the punishment for an offense. He expressly says that the judiciary and lawmakers should not be allowed to use consideration of Utility to affect their minds while deciding the punishment. Kant mainly focuses upon the criminal desert and not on moral desert. According to him the same degree of retribution should be use towards criminals. If he commits Murder then the punishment should only be the Death penalty. He was the staunch supporter of Lex Talionis principle.
But if we follow Kant’s path how can we distinguish between the punishment of the person killing his neighbor in private defense and the person killing his friend intentionally?
There is also a lot of limitation in this theory. If we consider other types of crimes like Rape, in our civilized society, how can we able to punish the criminals with the same degree and kind?
There is some ambiguity like does he believe that the punishment does not have to be equal in kind, but just commensurate in magnitude? If this is true why not choose life imprisonment instead of capital punishment, which also adheres to the principle of proportionality? Also, as per Beccari’s thought, there is an alternative to capital punishment, life imprisonment. He says that:
“To anyone who says that life-long slavery involves as much suffering as death and is thus equally cruel, my response is that if you add up all the miserable moments of slavery it will perhaps turn out to be even more cruel”
According to him in life imprisonment, the suffering is for lifetime but in capital punishment, all the suffering ended in one day and also there is an advantage in life imprisonment i.e. it is more terrifying to the observer than to the sufferer. As a result, the use of capital punishment on the basis of a theory of retribution is built on fragile ground.
The utilitarian justification for the death sentence is based on the ostensibly positive impact it has on deterring potential criminal behaviour and therefore securing social order. Objections to this utilitarian explanation stem from two sources. The first is ethical because it regards individuals as a means to an objective, which is essentially wrong. The prospect that even innocent people may be punished is inherent in the assumption that capital punishment may be used as a tactic of deterrence, creating the same impact that proponents of capital punishment promote as desired. It calls into question the morality of the strategy, in which innocent people’s lives are sacrificed on the altar of the ostensibly deterring impact it has on crime.
Second, the criminal justice system is not immune to prejudices and errors that are unavoidable because humans are fundamentally imperfect, and this fallibility risks leading to the execution of innocent people. Utilitarians argue that it is legitimate given the larger good it attempts to produce, however, this argument is founded on dubious moral grounds because it contradicts the concept of justice by prioritizing group interests above individual interests. These prejudices are shown in research done in the United States, which showed that black persons have more chance to be given capital punishment for murdering white people but the same is the opposite if the white person murders the black person.
It stands to reason that rehabilitating and reforming a criminal is a viable alternative to capital punishment because it achieves the same utilitarian goals without resulting in a loss of life. Confining an offender and devising a plan for his reintegration would serve dual purposes of the greater public good while protecting an individual’s sacred right to life.
Reason to abolish capital punishment
Our justice system is well-known for being biased towards the poor and disenfranchised. And it’s only natural that the poor will be punished more severely than the wealthy. Here are some numbers that reveal the whole picture. The study conducted by the students of National Law University with the help of the Law Commission of India, which take interviewed 373 death row convicts over 15 year period and after analyzing it found that three-fourths of death row convict is from backward classes, religious minorities and also 75% is from economically weaker sections. The poor, Dalits, and others from backward social classes typically face harsher punishment in our courts due to their inability to get skilled counsel to challenge their conviction. Also according to Philip Alston, a UN independent specialist on poverty and human rights, the death penalty has a large sign on it that says “reserved for the poor,”. This discrepancy has not happened only in India, actually, it happens in all the country which used the death penalty as a punishment like if we see in Kenya, According to Mary Ann Njau, a top court officer in Kenya, the bulk of the over 800 prisoners on death row in Kenya as of March 2018 were impoverished, had little or no education, and resided in rural regions, where living conditions are often worse. Only one guy and one woman had a university education out of 142 male and 25 female death row convicts.
In addition to this, the skin colour of a criminal and victim plays an important and undesirable part in determining who gets the death penalty. People of colour have accounted for 43 per cent of the executions in the United States since 1976, and 55 percent of those now awaiting death. Also, as per United States General Accounting office, Death penalty Sentencing February 19907 –
“In 82% of the studies [reviewed], race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be sentenced to death than those who murdered blacks.”
Also, according to a study published by the New Jersey Supreme Court in August 2001, the state’s death sentence statute is more likely to be applied against defendants who kill white victims. Sometimes also due to the biasness people get the punishment that they don’t deserve for example “Since 1973, more than 8,700 people in the U.S. have been sent to death row. At least 182 weren’t guilty—their lives upended by a system that nearly killed them”. We can see this type of discrepancy in our society like if we see the example of 6 members of the shinde family named Rajya, Ankush, Raju, Ambada, Bapu and surya, Who were sesentencedo death but after spending 16 years in prison they were set free and acquitted by Supreme Court after again examining evidence. But in earlier years between June 2003 to April 2009 the same supreme court, Nashik session, and the Bombay high court found them guilty and sentenced them to death.
Judges, lawmakers, the media, and the general public have embraced the relentless discourse that attempts to improve victims’ rights by taking away essential rights from the guilty. No criminal justice system can be trusted if the accused’s rights are defined and impacted by the severity of the offense. Victims’ rights cannot be protected at the expense of the accused’s rights. That erroneous course will only result in more unjust convictions, with the real criminals never being prosecuted. The percentage of convictions in our criminal justice system is quite low. At the same time, over 75% of our jail population is made up of undertrials who have been in prison for lengthy periods of time without being proven guilty. The police and prosecutors are under enormous pressure to get convictions using colonial-era procedures. There are perverse incentives to fabricate torture-based evidence, plant evidence, commit prosecutorial misconduct, and withhold exculpatory evidence in this scenario. In our nation, wrongful prosecutions and convictions are considerably more common than people realize. The Quill Foundation’s superb work in the context of terror prosecutions, as well as Manisha Sethi’s incisive study of terror trials in Kafkaland, are clear examples of this.
Due to all these reasons UNHRC, other UN entities, and various countries from all over the world in other words whole world coalition in 2007 made one of the most significant decisions when it voted to endorse the UNGA resolution calling for a complete ban on capital punishment all over the world and in 2020 United Nation general assembly with 123 votes adopted the resolution for the ban of capital punishment
Also, in the United Kingdom, the death penalty was officially abolished by the Human Rights Act. This means that a public authority, like the police or the courts, cannot execute or condemn someone to death as a result of their actions. This is true in all situations, even in times of peace and times of strife. According to them, the right to life (Article 2) and the right to be free of torture and cruel or degrading treatment (Article 3), all of which are guaranteed by the Human Rights Act, are both violated when someone is sentenced to death. The last time the punishment of death sentence in the United kingdom was given to when Peter Allen and Gwynne Evans was on 13 August 1964 or the murder of John Alan West. The UK International Ambassador for Human Rights issued a statement in February 2021, saying:
“The UK believes that the use of the death penalty undermines human dignity; any miscarriage of justice leading to its imposition is irreversible and irreparable, and there is no conclusive evidence of it working as a deterrent to crime.”
Hence capital punishment should be abolished and instead of this, some other punishment which gives some deterrent should be given like life imprisonment.
The death penalty is a centuries-old notion that has been applied in every civilization throughout history. Despite the passage of time and the advancement of civilization, this practice continues to be practised in the twenty-first century. For years, not just on a global level, but also on a national level in India, capital punishment has been a divisive topic. Despite the fact that the death penalty is now mostly restricted to a limited number of jurisdictions, its faults and shortcomings are more obvious than ever. There is a lot of discrepancy in this punishment which I have discussed in this paper.
I’ve tried to show that the state’s right to impose the death sentence isn’t based on good reasoning in the preceding discussion. To that purpose, I’ve looked at the utilitarian and retributivist reasons for the death penalty, as well as the flaws in both schools’ arguments for the state’s right to use capital punishment. I have also tried to explain different facts and reasoning for why capital punishment should be abolished. Given that there is no feasible method to erase the prejudices built into the criminal justice system, the administration of capital punishment will continue to be marred by inequity, with people from the poorest strata invariably getting the punishment, it is long past time for the state to abolish the death penalty and replace it with life imprisonment, which serves the same objective.
In a country like India, where the Constitution safeguards the human rights of 1.3 billion people, a penalty like capital punishment should be replaced with alternatives such as those listed above. While capital punishment is horrifying, it can also be ineffective, resulting in the deaths of innocent people. Only God, not the government, has the power to take our lives away. In light of this, new applicable rules, as well as expert assistance, should be developed to enable the successful implementation of alternatives to capital punishment.
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Giuseppie Pelli, Against the death penalty: writing from the first abolinist Giuseippe pelli and cesare Becarria, Criminal Law and Criminal Justice Books( 10 April 2022), https://clcjbooks.rutgers.edu/books/against-the-death-penalty-writings-from-the-first-abolitionists-giuseppe-pelli-and-cesare-beccaria/
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