CAPITAL PUNISHMENT AND THE SKEWED IDEA OF JUSTICE

“Capital Punishment is as fundamentally wrong as a cure for crime as charity is wrong as a cure for poverty.”- Henry Ford

This idea of how principally flawed capital punishment or the death penalty is, has now been recognized by almost over two-thirds of the world. The UN Secretary General’s 2018 report on the death penalty states that around 170 States have abolished or introduced a moratorium on the death penalty either in law or in practice, or have not carried out executions for more than 10 years. This has proved to be a huge success for activists who have long been fighting for the abolition of capital punishment. Their movements have been influenced by the notions of Enlightenment thinkers like Cesare Beccaria (1775) and Jeremy Bentham (1789) who have argued that the death penalty is excessive and have negated its deterrent effect. However, proponents of capital punishment claim that its mandatory need to “do justice” for and provide closure to families of homicide victims. They are majorly driven by the idea of how these criminals are undesirable elements that must be eradicated from the society. Yet science suggests that achieving closure through the death penalty may be a myth and we see a worldwide growing trend in the number of families of victims who actively oppose capital punishment or do not want it to be pursued in the name of their loved ones. The death penalty is often referred to as the “ultimate punishment” that any criminal justice system can hand down to convicts of the most gruesome crimes. The public generally considers the failure to sentence a criminal to death in a state that has capital punishment available as an extreme injustice to the victims and their families. The skewed logic behind this argument holds that if the state fails to punish those who have committed the worst crimes in the most severe or punitive measure possible, then it is diminishing the value of the victim’s life or elevating the value of the offender’s life. In a discussion with the students of criminology and criminal justice, it was found that most of them argued that offenders who choose to kill others are simultaneously choosing to give up their right to life, citing the ideas of rational choice and free will. The support for the death penalty is predominantly justified through the idea of justice and closure to victims and their families. But how effective does this “closure” remain for these people when offenders spend 20 to 30 years or at least a decade on death row, awaiting execution as a result of the staggering conditions of the judiciaries all over the world. The criminal justice systems worldwide are based on the ‘Theory of Punishment’. It provides the four key elements of systematic punishment imposed by the state namely, the protection of society; the deterrence of criminality; the rehabilitation and reform of the criminal; and the retributive effect for the victims and society. Capital punishment, in its very essence, breaches the spirit of the ‘Theory of Punishment’. The first element, that is the protection of society, can be accomplished equally well through incarceration or life imprisonment as it can be through death penalty. This has been proven time and again as offenders have spent decades on death row, harming no one, but being treated brutally within the prisons. Earlier there was little alternative to the death penalty for horrific criminals because governments did not have secure prisons to house violent criminals for longer periods of time. With improvements in staffing and technology, this has changed and life-without-parole sentences can be served in relative safety. This alternative has led to a shift in public opinion with most people coming to terms with the fact that being locked up in a solitary cell for an eternity is indeed a terrible punishment. Another more recurring claim in favor of capital punishment is the notion of “deterrence”. Proponents all over the world strongly affirm that a harsh punishment serves as a moral punishment for the entire society and deters the general public from committing offences out of a fear of the death penalty. There are studies to show that there occurs a short-term deterrent effect on homicides immediately post a publicized execution. It demonstrates that the more publicity surrounds an execution, the more homicides decline thereafter. However, there are no findings to support a long-term deterrent effect. This claim rests on a very false assumption that individuals who commit capital crimes rationally plan their actions and calculate all the costs and benefits accruing from their actions. In a study, the findings on the relation between the use of death penalty and crime rates conducted for the UN in 1998 and updated in 2002, it was effectively concluded that that there has been gathered no scientific proof to the hypothesis that ‘executions have a greater deterrent effect than life imprisonment and such proof is unlikely to be coming up in the future.’ If life imprisonment matches up to its deterrent effect, then what exactly is the exclusive benefit coming out of the death penalty? “Justice” and “retribution” have become quite intertwined in philosophical debates about punishment, especially when they are focused on capital punishment. The argument for retribution can be understood as nothing but a desire for vengeance disguised as a principle of justice. The history of the establishment of the rule of law marks the history of the progressive restriction of personal vengeance in public policy and legal codes. However, execution validates this idea of personal vengeance and completely negates the principle of rehabilitation. It is a highly totalitarian and arbitrary approach that regards criminals as undesirable elements to be scraped off from the society. It turns a blind eye to the fact that most of times these horrific crimes are those exceptional few minutes in the perpetrator’s life committed under excessively abnormal and stressful circumstances, or at the peak of years of brutal suffering. Retribution, therefore, plays a very crucial role in the support for capital punishment. The entire idea of punishment should be backed by the ideals of rehabilitation and correction rather than an emotionally-driven revenge. Many offenders acknowledge their crimes and guilt but a death sentence deprives them of any opportunity to reform. Australians A. Chan and M Sukumaran, who are currently on death row for drug related offences in Bali, are great examples of rehabilitation, where one is running art classes while the other is studying to be a pastor. Their reform has reached an extent that the former governor of Kerobokan prison has argued that they should not be executed. People might counter argue that the threat of death forces people to reform but there isn’t enough conclusive evidence to support this argument. Criminal justice systems and prison systems have witnessed great successes in reform without any death threat and often due to offender rehabilitation programs. When the state performs a cold-blooded execution, it neither eases the suffering of the victims nor does it correct the past wrongs. We never come across a criminal legislation in any civilized society that demands a rapist to be raped or a torturer to be tortured. Extending this cycle of violence by committing further wrongs only multiplies the number of victims and never restores any rights. Undertaking an act of execution in the name of the victim is in fact disrespectful to the dignity and memory of the victims. Family members of various murder victims have increasingly started rising in opposition to the death penalty. R. Cushing, whose father and brother-in-law were murdered in two separate incidents years apart, led to the successful repeal of New Hampshire’s death penalty in 2019, described the death penalty as a “ritualized killing” that in no way, compensates for the loss of a loved one. Moreover, in a recent publication, Not in Our Name, nine people who lost a loved one to murder, share their stories of grievance and reconciliation and their transformation to staunch opponents of capital punishment as a method of increased violence in the form of state-sanctioned execution. These accounts sufficiently manifest that the death penalty provides neither the closure nor the healing that the legal system promises. An execution is downright cruel and inhumane as recognized by the Amnesty International. It is the premeditated killing of a prisoner who could be tackled equally well through other less harsh alternatives. For those who believe this, there can never exist a humane way of executing a person. In the popular Furman vs Georgia, Justice Brennan concluded the death penalty to be unconstitutional by stating that an execution takes away an individual’s “right to have rights” and consequently, acts as a denial of the executed person’s humanity. The inherent principle behind human rights is that they are inviolable, protecting the best as well as the worst of us. The most crucial challenge to the skewed idea of justice underlying capital punishment is, indisputably, the sentencing and execution of innocent people. Since 1976, 123 people have been released from death row after being found to be completely innocent. During the same time period, over 1004 people have been executed. This clearly shows that for every ten people executed, an eleventh innocent person spent time on death row. There have also been documented case of innocent people been mistakenly executed since the early 1900s. If a robust legal system like that of the United States, with considerable procedural safeguards, is still not infallible, one can just imagine how huge this risk becomes in countries that have weaker legal systems and a large population of poor people. The outrageous truth of the death penalty that often remains hidden from the eyes of the public is its discriminatory and biased nature. The decision of “who” shall be executed is often not only hinged on the nature of the crimes but also on the ethnic and social backgrounds, the financial means or the political opinions of the defendant. Studies on the question that whether defendants of a particular race are more likely to receive death sentences have given conflicting results, but "for crimes that are comparable, the death penalty is between three and four times more likely to be imposed in cases in which the victim is white rather than black." Despite overt racism, that was prevalent in the old order, is plainly unconstitutional now, there is an overarching class bias in today’s times when the best defence lawyers cost an arm and a leg. As suggested by a favourite saying on the death row, “Those without the capital get the punishment”, the ones with the least access to legal resources are the ones most likely to get executed. In the past few years, an increasing number of people have begun questioning the adequacy of the legal system that imposes the death penalty. Active opponents of the death penalty have shifted their focus from the immorality and irrationality of execution to the flaws in the legal procedures involved in the administration of the punishment. The State through an act of execution sends out a narrative that there are situations when killing is legally sanctioned and hence, acceptable. It opens the door for arbitrary killing of political opponents, minorities, the poor and the marginalised that evidently infringes the ideals of democracy and the rule of law. It legitimises cold-blooded, pre-meditated killing as ‘justice’, an idea that is problematic in itself. With more and more families of victims resisting it as a means of justice or closure for them, this entire argument in favour of the death penalty falls flat on its face. What holds greater significance here, is that the State should aim at rendering respect, recognition, and the appropriate kind of support to these victims and their families. Civilized societies today must be built on a different set of values from those they condemn. An execution can never be used to condemn killing; it is killing in itself. If today’s legal systems do not sanction the rape of a rapist or the burning down of an arsonist’s house, it is not because these crimes are tolerable or less horrific, but because the State cannot replicate the actions of criminals. Reducing crime and violence in the society takes extensive research into the causes, effective policing, reform and rehabilitation. When all of these can be achieved quite productively without the use of capital punishment, the question then persists that what absolute purpose it really serves in society.