This article is written by Ashrit Goyal, pursuing BBA.LLB from Symbiosis Law School, Noida. This article deals with the issues of the Death Penalty.
Ever since the 18th century BC, the biggest punishment known to man has been to give the death penalty to the wrongdoer through various gruesome means. It has been used by various civilizations to set a model of the crimes which are highly undesirable by the society, by the ruling power (to demonstrate and exert their dominion) and defined as a wrong pertaining to the times. It was first found in the code of King Hammurabi of Babylon for 25 various crimes.
There was also a mention of it in the draconian Athenian laws of the 7th century. Some of the very vicious ancient methods used to do this were crucifixion, by using animals, back-breaking, tying people to the mouth of a canon, buried alive, dismemberment, drowning, garrotte just to name a few.
Coming to the modern context, between 2013 to 2017 according to Amnesty International, around 34 countries carried out capital punishment and although the means are less cruel now methods such as hanging, shooting, lethal injections, electrocution, gas inhalation, beheading, stoning, crucifixion and according to CNN, Fox news etc. by some very powerful weapons such as anti-aircraft guns, flamethrowers and mortars by the North Koreans.
It cannot be really said that capital punishment has been blanketly accepted in any way today because as per Amnesty International, some 142 countries have by practice or by law through a moratorium abolished the death penalty. Out of these 103 countries have outright banned this method penalty and the rest although haven’t expressly banned it but have rejected its usage for more than 10 years.
Various organizations like Amnesty International and the American Civil Liberties Union have also been contesting it on various levels. Where the resistance finds its strength is primarily in the fact that the reasoning behind the serving of capital punishment varies by so much which further complicates the various aspects of international law too and that each day before a prisoner is sentenced to death, it is said that just the anticipation of the sentence can be like a life and death experienced every day.
Now I know that giving the reader an endless supply of methods to hopelessly murder countless individuals is not the best way to introduce you to my topic but all of this at its finest does give the readers the question, Why since the very beginning have those in power resorted to such gruesome methods of punishing people? Why aren’t other forms of punishment enough? And what is the reason behind such a split in opinion between the globe on the topic of Capital Punishment? This is where the true purpose of this article lies, to try and answer these questions while also making the readership cosier and more comfortable to this topic which tends to make people stand up from their seats and experience agony just by the sounds of it.
Primary Themes or Issues
1. Why has capital punishment been practised? Why does it continue to take place?
If we look at the opposite spectrum of ‘An eye for an eye and tooth for tooth will make everybody toothless and blind’ then we will find the age-old principle of retaliation/retribution through which, in an effort to even the odds this heinous act of counter murder is committed, to both punish and deter the act from happening again and to set a favourable precedent and fear amongst the common place.
In the general public, it also helped reinforce the faith in the system of justice when the public would utter things like, ‘serves him right’. If we go way back to the Babylonian law where this concept of capital punishment can be first traced back to it was stated that criminals shall be given exactly that amount of punishment which they had inflicted upon the sufferers. This principle was known as Lex talionis i.e. the law of retaliation, to be precise retaliation in a very proportionate form aka “let the punishment fit the crime.”
Even poets like William Wordsworth have very energetically, thoroughly and passionately defended the state’s right to execute which can be found in his sonnets Upon the punishment of death. Capital punishment was the root of where all other kinds of punishments were derived. Punishments on other serious crimes tended to be mostly variations on execution.
It is generally assumed that the liability for capital punishment is only for the most serious offences such as murder. The other reason behind still using it other than retributivism also includes looking at it from a utilitarian perspective and considering any positive future effect or consequence that it holds which is insignificant for the retaliator.
This consequentialism tries to best capture the essence of total pleasure which helps achieve the well being of the society with the idea being that the total sum of pleasure gained should be more than the pain received. Thus, it heavily revolves around an empirical approach and involves the smallest and the biggest marginal effects of capital punishment on the wrongdoers and on various other stakeholders.
Writers such as Cass Sunstein and Adrian Vermeule state that even if one innocent life can be saved and a potential wrongdoer is scared off from committing a wrong then it becomes morally justifiable or even a requirement for the society to engage in this method of punishment. It is also justified by its effect on the homicidal rates in various states wherein a significant possibility of positive improvement also becomes one justification.
2. Why is the entire world in splits over the usage of Capital Punishment?
On the one side of the capital punishment are countries like Saudi Arabia, Pakistan, Iran and Iraq which are responsible for carrying out more than 84% of executions in 2017 alone, not including China which keeps these statistics a secret which on an estimate executes 1000s of people every year, and on the other side are a 106 countries who have explicitly banned capital punishment, several others who only do it in extreme circumstances and have abandoned it, and multiple peace-making organizations, jurists etc. all heavily condone this activity.
The retributive or the consequentialist grounds above also state that why can’t we rape the rapists or torture the torturers for an equivalent response to the hurt that they have given which could scare away any future rapists and torturers. The real-life counter to this aspect is the fact that too often it is imposed arbitrarily, wrongfully, discriminately and hatefully by a flawed legal system which makes it morally non-justified. Another crucial aspect is that the supporters of capital punishment forget to draw the line on what is too ‘cruel’.
Another issue is that the innocent man in the flawed legal system just ends up becoming the most useless person in the world as he has no weightage in this system of capital punishment which makes all lives regardless of them being innocent or guilty being weighted equally. One may refer to the book “The Injustice System” by Clive Stafford Smith to see exactly how severely this flawed legal system can ruin an innocent person’s life.
The supporters of consequentialism on this matter heavily pivot around the fact that the state actors do it as a response to what they let happen in the first place, i.e. a failure to prevent the wrong from happening itself. At some point in time, there was also this metaphor where animals were being compared to the punished humans wherein a faithful dog if becomes rogue and bite his master then cutting him by his neck was the immediate solution.
Thus, the offenders one could say are also referred to as criminals who cannot be reformed. In India’s context, the case of Ajmal Kasab best fits this scenario where he gunned down hundreds of innocent civilians in Mumbai but then, what does one do with such a ruthless person who decimated 100s? What if death imprisonment here is crueller than capital punishment? What about the many people who are then to be deployed just to the cage and watch a wretch like Ajmal Kasab.
Then this argument also stems itself into the debate of euthanasia. Though one must keep in mind that a lot was considered even before giving Ajmal Kasab a death sentence because death as a punishment is very irreversible and thus needs high surety and accuracy. In states like Georgia after a capital murder has been charged on an individual a separate sentencing hearing thus takes place.
Therefore, this debate goes back and forth with no finitude and though more and more countries continue to ban this practice in favour of the human rights, dignity and equity; we still will have to contend with countries like saying, the Saudi Arabia which will deploy fear into the hearts of their public via the method of public execution to instil fear in its citizens to not do the same.
3. Does Capital Punishment actually stop further crimes from happening?
The evidence seen so far is very compelling to show that capital punishment is certainly appropriate for certain crimes and that the people higher up the order to support this ordeal. Before we come to the point of further crimes, we must take into consideration how long it actually takes to actually capitally punish the wrongdoer.
In Georgia, the average time period for this is around 10 years and it can be more than 25 in some countries such as India. Complicated legislation makes it more and more complicated to give the person this punishment. Which further brings us into the question of,’ Is all of this worth it? In the US, sample data from 1973-1984 showed that the murder rates in states without capital punishment were always lower and lingered around 63% of the corresponding rates which kept capital punishment.
Some very complicated statistical factors emerge over here. First, is that there is no causal relationship between the data and that there might be a 3rd unknown factor which maybe causes this disarray instead?
The consequentialists here can immediately jump to the defence of a significant possibility being used as a justified deterrent too but thankfully they have more to their favour. Modern statisticians brought in more tools for this research and then people such as Isaac Ehrlich used a regression model to rope in factors such as the employment rate and income capital to get a slightly negative number which he deemed significant stating that, ”Capital punishment does affect the murder rates in a very unique way.”
These findings turned out to be very precarious and with the passage of time, what worse happened was that in a medical paper it was revealed that there were psychopaths who would choose to commit ‘suicide by homicide’ and would go on a killing spree along with other statistical findings that using capital punishment instead increased the murder rates.
In the famous case of Furman v. Georgia(1972), Justice Marshall contended that he ultimately could say that capital punishment is unjustifiable based upon its deterrent effect. Where Capital punishment still draws its strength from is from an intuitive and a philosophical standpoint. Philosophers like Karl Marx were big supporters of the death penalty where he stated that the criminals should be used as a means and not as the end. He stated that there is no substitute for death and it must be done without regard for the circumstances or special feelings, again bringing us back to the metaphor of convicts being related to mad animals.
In this article, we all have together witnessed the various facets of capital punishment, ever since its birth in the Babylonian times to the current challenges it faces today in the US and in the globe. We have seen the various advantages and disadvantages. And in the light of all this, I will slightly concur but also disagree on the usage of capital punishment because, unless it is a special case of terrorism or a case involving narcotics which harms the society at large, the judicial system should tread extremely carefully with giving a death penalty especially in cases of civil wrong or homicide because with this form of punishment it becomes very hard to give the individuals a life of dignity, equality and also very difficult for proportionating.
Dignity is indeed thrown out the window when such a distinct metaphor of humans to animals can be drawn and innocents become the most useless thing as well. We have seen multiple people taking into account the significant possibility of deterrence but nobody has so far seemed to include the situation of what happens when an innocent is convicted for a crime that he didn’t commit?
Capital punishment has worked out in countries like Saudi Arabia, but for most other cases its effect can only be said to be either ‘unique’ or in fact a negative effect instead thus it is better if we support the causes such as Amnesty International to quell the mainstream usage of the capital crime as much as possible but don’t let that stop the authorities from punishing non-recoverable people such as Ajmal Kasab.
The following sources were used in the making of this project.
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