Revisiting the Death Penalty

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As the execution of the terrorist convicted for the Bombay blasts of 1993, Yakub Memon, became imminent, the spigots of saccharine morality were fully opened. Several sound bites, opinion columns, and editorials appeared in the Indian media condemning the institution of the death penalty. Some questioned the judicial process and a few even raised doubts about law enforcement procedures in the country. The latter two categories are of less concern and have simpler solutions via reformation, clarity, transparency, and checks and balances. The practice of state-sanctioned executions, however, needs the occasional support.

In India, the death penalty is reserved for “the rarest of the rare” cases. A crime of passion or even a simple, pre-meditated murder does not qualify for the death penalty under Indian law. This establishes a high standard which the accused may breach only by excessive brutality of the crime, multiple counts of the infraction, or sheer magnitude of the deed. In essence, Indian law is talking about sadists, serial killers, and terrorists. The result of this stringent policy is that the overwhelming majority of cases in which there may be some doubt of guilt despite the trial and appeals process are filtered out: to take just the most recent examples, regardless of their view of the death penalty, no one seriously doubts the guilt of either Yakub Memon or Ajmal Kasab. The limited scope of the death penalty, therefore, makes it disingenuous to compare the murder rate to the number of executions to argue that there is no correlation. On the flip side, those that argue for the deterrent effects of the death penalty are also equally wrong – most people who are considered for the death penalty are involved in such heinous activities that the clean and swift death offered by the state might actually be considered a reprieve.

There is also some concern that the judicial system may be biased against some of those who appear before it. Judges are, after all, part of the society and are not immune to social, religious, economic, or other biases. Yet these fears are non-falsifiable – it is virtually impossible to prove that someone is perfectly objective when considering the death sentence, particularly given the small sample space of death penalty convicts. A rigorous selection procedure for judges, a trial and appeals process for the accused, strict evidentiary standards for law enforcement, and well-defined laws reduce the bias and arbitrariness of the judicial system as much as is humanly possible. The several levels of the judicial system which allows for repeated appeals gives the accused multiple opportunities to address issues of faulty counsel or judicial impropriety. Ultimately, all systems – including air traffic control and pharmaceuticals – are human and to demand perfection in the face of a policy that one is disinclined towards demonstrates only churlishness.

Opposition to the death penalty is founded on the belief that retribution is unworthy; it should be abolished because we are a civilised society. These assertions – they are not arguments – appeal to what Aristotle called the pathos, or emotions of the public. Mercy, forgiveness, civilisation…such words encompass lovely ideals that appeal to our vanity as much as our hopes when it costs us nothing. Yet there is nothing qualitatively superior to such assertions compared to saying that as a civilised society, we cannot tolerate those who commit exceptionally brutal or gruesome acts. Retribution is very much a part of human nature and laws that suppress such strong evolutionary inclinations just beg to be violated. Even a brief survey of world literature and history would powerfully underscore the part revenge plays in human affairs. Recent mob attacks on rape-accused in India, even in jail, reiterate this lesson even further.

Yet if not the death penalty, then what? It is a difficult case to make that incarceration for life in a 6×8 prison cell is dignified. Pardon is unthinkable but even affording sadists, serial killers, and terrorists a life with access to television, newspapers, books, and the opportunity to obtain educational degrees offends the imagination. The fondness for rehabilitation of convicts is mostly a 19th century affair, born partly from the ill-conceived optimism of the Enlightenment in the power of rationality. However, rehabilitation focuses entirely on the convict and readmitting him to the realm of humanity; it does not address the issue of punishment or providing justice for the victims. Such uneven treatment, surely, cannot be virtuous!

The call to abolish the death penalty is lost in abstractions. It unwisely takes an absolute position that there is no case in which the death penalty is deserved while offering an alternative that is more flawed than idealistic. In the absence of real options, there can be no serious debate on the issue. Returning to the Yakub Memon case, the real travesty is that it took the Indian judicial system over two decades to resolve the matter. Where is the outcry over that?


This post appeared on FirstPost on July 31, 2015.

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