• Riya Jeph

Rarest of the Rare: A Case for Capital Punishment

Tsutomo Miyazaki infamously known as The Human Dracula was hanged to death at the age of 45. His horrific obsession with little girls led him to abduct them, kill them and sexually abuse their cold corpses. His satanic impulses led him to drink his victim’s blood, preserve their body parts as trophies, and send postcards to the families describing the murder, suggesting that some beings are beyond reformation.

This instance might sound to be an extreme case, but the radical abolitionists advocate a total removal of capital punishment regardless of the crime, owing to their noble belief that no woman/man is always and only a murderer, which is accurate. However, the state is a law enforcer, and it cannot afford to take up the role of a spiritual reformist. And that makes the existence of capital punishment a necessary evil. However, there are genuine concerns we must address before concluding.

THE QUESTION OF ETHICS

The abolitionists and human right activists argue that Capital Punishment is rooted in revenge, cruelty and an oppressive stance against some people’s right to live. In India, there are two methods of capital punishment- hanging and shooting, and the crimes punishable by death include aggravated murder, offences resulting in death, terror-related activities resulting in death, rapes, treason, espionage etc.

To address the question of cruelty, we must keep in mind that the system of law doesn’t concern itself with seeking revenge for individual victims but establishing a harmonious law-abiding society through the means of restraints and punishment, to maintain a free and secure setup for its individuals. Every complex society in the history of humanity has accepted the norm of rewards and punishment as a necessary mechanism to keep regular humans in harmony with each other. This nullifies the claim that the modern control of state on people’s lives is rooted in revenge.

However, one might still argue that capital punishment is subhuman and arbitrary. In fact, from an objective standing, capital punishment in its present form is in exact proportion to the degree of crime committed than ever before. The earliest forms of capital punishment involved beheading, boiling, drowning, beating to death, burning alive etc. and these were rarely in proportion to the degree of crime committed; they were outrightly brutal. The means used today are not unfairly cruel, but the least painful options we have to end someone’s life.

The state is very much in agreement of having to execute the least number of people. The criminal justice system of India is accused oriented working on the maxim that it is better that ten guilty persons escape than one innocent suffer. It provides a lot of legal facilities to the accused to prove his/her case. There are safeguards like appellate jurisdiction, mercy petitions etc.

Even for the crimes eligible for the death penalty, it is essential to note that every criminal is not sentenced to death. The judgement in Bachan Singh vs the State of Punjab is an indispensable guide for determining who gets executed. It clearly states that offences resulting in death are punishable by death only in rarest of the rare cases. The death penalty is not even a mandatory punishment; the SC has ruled that the mandatory death penalty is unconstitutional. NLU Delhi researched capital punishment according to which 755 people have been hanged in Independent India, and that number is less than the thousands of murders and rapes that have taken place in India which shows that the rarest of the rare argument is indeed practised. This fulfils the advocacy to give capital punishment in extreme cases because the state already does that.

The apprehension that innocents might be executed is an exaggerated assertion based on scepticism. The accused are convicted of the crime only when found guilty beyond a reasonable doubt and executed only in the rarest of the rare cases. This exceedingly removes the possibility of an innocent being executed. However, the judicial system indeed favours the privileged, but that is a result of corruption and power game which becomes a problem in almost all kinds of punishments, not just capital punishments. However, almost everyone regardless of socio-economic identity is executed if the crime meets the rarest of the rare criteria.

Having said that, we must acknowledge that the decision concerning Capital Punishment is considerate of human rights. The following categories of people are exempted of capital punishment even if the crime deserves one-

  1. Individuals below the age of 18 at the time of the crime

  2. Pregnant Women

  3. Intellectually disabled

  4. Mentally ill

If the sole aim were vengeance, then the state wouldn’t have created a lengthy legal procedure considerate of the subjective nature of the accused. One of the accused in the Nirbhaya gang-rape case was released after spending three years in a rehabilitation home because he was under 18 when the crime was committed, although he was an equal participant in committing the crime. Moreover, today’s laws are reflective of society’s will rather than that of the state. As a result, the existence of capital punishment derives its legitimacy from the public.

THE QUESTION OF DETERRENCE AND CHANGING MENTALITY 

The realm of idealists advocate a change of mindset at the societal level; everyone should be educated and socially nurtured within the right value systems. The death penalty doesn’t solve the problem of crime; therefore, it doesn’t deter.

These abolitionist claims carry a lot of weight, and therefore cannot be ignored entirely. Punishments never act as developers of human consciousness; they cannot enlighten the human soul. Indeed, a change in mentality arises from reformist policies and ethical value system. However, it is an undeniable reality that we don’t inhabit a society wherein every human is in connection with her/his consciousness and sense of morality. In our imperfect world, some humans go astray, and most of the time, it is beyond our capacities to change their thinking after a certain age. According to a study by Harvard psychologist William James, our personalities mainly stop changing around the age of 30. So it is futile to think that the state can change the value system of adults and prevent them from committing wrong. What the state should do instead is prevent the wrong-minded adults from committing a crime by punishing those adults who commit crime because conscience is not likely to be very effective unless there is accepted custom of legal punishment. A normative understanding cannot deter some humans that one shouldn’t kill; they better understand-if one does not want to get punished, one shouldn’t kill.

After the Nirbhaya incident, Madhumita Pandey, a masters student of clinical psychology, conducted a study on rape convicts and tried to find the reason behind the crime. She spoke to 122 convicted rapists in Tihar jail. She found out a pattern of cognitive distortion- they still justified their crime by creating their analogies. She interviewed another bunch of convicted murderers to find out if murderers thought the same way.

The result was pathbreaking- the murderers had a sense of remorse, unlike rapists. She says, “most convicted rapists presented themselves as non-repentant and attempted to justify their crimes.” They told Pandey that the women they raped had no idea how to dress modestly, that their body language was inviting and that all men raped — they were just the ones who were caught.

Claims which consider capital punishment ineffective are very unfair in their judgement; they assume that rising crimes rate is a failure of capital punishment as a deterrent whereas increasing crime rate is a failure of education and the principles on which our society stands, not capital punishment.

According to Issac Ehrlich, one fears capital punishment the most: 99% of all prisoners under death sentence prefer life in prison. There’s still a lot of ambiguity around it because of the lack of objective research. However, PhD scholar David Muhlhausen claims that the majority of studies that track the effects of capital punishment over many years or across states or countries find a deterrent effect.

When Jesus was crucified, he famously said, “forgive them for they know not what they are doing.” They were wrong and what Jesus said was right, but the truth is, we are no Jesus; at the most, we are self-centred, law-abiding, potentially wicked beings who fear punishment for our collective sanity as a society.

By Riya Jeph riyajeph74@gmail.com

The featured image first appeared on in Know Law on 14 October 2020.

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