Fatal error

The execution of Afzal Guru on February 9 reopened the question of India's continuing attachment to capital punishment. Like relatively few large industrial democracies, India and the US continue to practise and defend the death penalty. Both recently voted against a UN General Assembly resolution calling for a moratorium on executions with a view to abolition.

The two nations are very different in their practices. India has nearly 500 prisoners on death row, but only four have been executed since 1995. In the US, 43 people were executed in 2012 alone. Capital punishment in the US is a state matter, because the federal government chooses not to use it. However, the number of states in which it is still legal is gradually diminishing, with only nine out of 50 still practising it. My own state, Illinois, abolished the death penalty in 2011.

Attitudes in the US are changing, but not, on the whole, because of inherent objections to the death penalty. Instead, there is a growing conviction, shared by supporters and opponents, that it cannot be justly implemented. For a long time, it has been evident that the penalty in practice has been biased on grounds of class and race. People able to pay for high-powered lawyers almost never get it, and there is evidence that juries at the sentencing phase are apt to tilt towards people who look more like the majority. Bias is probably present in other criminal penalties as well, especially where juries are used, but the irrevocability of capital punishment makes people attend to it more. When the US Supreme Court briefly invalidated the death penalty in 1972, citing these grounds, states hastened to adopt rule-governed procedures that applied the death penalty without discretion to certain classes of murders defined in advance — only to be told by the Supreme Court in 1976 that criminal defendants facing death have a constitutional right to present their individualised histories at the penalty phase, pleading for mercy. If only a rule-bound death penalty can avoid the problem of bias, and if rule-bound penalties are unacceptable for other reasons, one might conclude that the death penalty cannot be fairly implemented, and this is what I believe. But that conclusion was not drawn by the Supreme Court, so at that level the matter remains open.

More recently, the Supreme Court has held that execution of juveniles and people with severe mental retardation violates the US constitution's prohibition of "cruel and unusual punishment".

The recent reaction against the death penalty, however, has other sources, again focused on implementation, but with new information driving the protest. DNA evidence has shown a high level of wrongful convictions in crimes across the board, including some capital crimes, where error, of course, is irremediable. Eyewitness testimony has been shown to be extremely unreliable. Prosecutorial discretion — about when to try a case rather than arranging a plea bargain, and concerning when to ask for the death penalty — has emerged as a frequent source of bias. And — especially pertinent to recent reversals of opinion — confessions have been shown to be highly unreliable, particularly when not videotaped. Police exhaust and mislead defendants until they confess falsely. It was this set of concerns that caused Illinois governor George Ryan to order a moratorium on the death penalty; some years later, our current governor, who insists that in theory he supports it, nonetheless signed the law banning it.

The death penalty, in short, cannot be fairly implemented in the US. We do not need to reach the knotty issue of theoretical justification to conclude that it should be abolished. Is India different? The sparing use of the penalty does, to some extent, undercut the objection of racial and class bias, and the problems of evidence might possibly be surmounted if it is considered only in a small number of cases where all the evidence has been sifted with unusual care. Police conduct might be intensely scrutinised by videotaping all interrogations, although at present that is not the case. Indeed, the police are more often part of the problem, and we might ask whether "encounter killings" are not a de facto form of capital punishment — possibly very biased in implementation. For India, we probably should at least ponder the standard theoretical pros and cons before drawing firm conclusions.

The most common justification for the death penalty is its potential for deterrence. The deterrent effect, however, has not been proved. In the US, it is possible to study the question, since states otherwise demographically similar have adopted different policies — and yet there is no conclusive evidence that the death penalty deters. For India, we should certainly reject deterrence as a rationale, since the types of killers who have been executed in recent years (serial killers and terrorist/political killers) are especially unlikely to be deterred. The latter may even seek martyrdom, as did Nathuram Godse, when he asked for the death penalty in order to show that Gandhi's non-violence was "being hanged".

If the death penalty doesn't deter, should we still retain it because people favour it? We must then turn to the primary rationale for banning the death penalty offered by the UN resolution: it "undermines human dignity". Appeals to human dignity are evocative, yet notoriously slippery. The notion of dignity has little clear content except when used in connection with a family of other concepts and principles. All too often, however, whether in bioethics or in law, people use this resonant term to bring debate to a halt, rather than to pursue the inquiry further. In the case of the death penalty, the need for a fuller argument is all the more urgent when we recollect that Immanuel Kant, a primary defender of the idea that the human being must always be treated as an end and not a mere means — probably the best general articulation of the notion of dignity — wrote that the death penalty is not only permitted but actually required by the respect we owe human dignity. Kant was wrong about many concrete ethical conclusions, but his views should prompt us to search for a fuller account.

I see no inherent reason why the death penalty must always violate human dignity, though I am ready to be persuaded. Certainly in both India and the US, prison conditions can often be far more degrading than a painless execution. For me, the telling point against the death penalty (apart from the concerns over implementation that I have raised) is that it encourages vindictive passions and in effect, enacts a type of mob justice. A system of justice should be above revenge; it should express a calm and balanced attitude towards wrongdoing. It is difficult for me to believe that the death penalty can ever express the virtues we rightly associate with the rule of law.

This theoretical debate is not over, and should continue. What is crystal clear, however, is that problems of fair implementation render the death penalty utterly unacceptable in today's United States, and, very likely though not surely, in today's India as well.

The writer is a professor of law and ethics at the University of Chicago and author of 'The Clash Within: Democracy, Religious Violence and India's Future', express@expressindian.com

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