Is there a place for the practice of capital punishment in our world?

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“The views represented in this opinion piece do not necessarily represent those of the Willy Brandt School of Public Policy.”

Capital punishment is death sentence backed by laws of the state for a crime that the state considers illegal and heinous. It has been one of the most important issues of discussion owing to its wide scope and contradicting arguments by various scholars. While most of the countries either have passed legislation against capital punishment or have instituted a moratorium on it, other countries including India still argue in favour of capital punishment and believe that it deters crimes. The number of criminals put to death penalty in India since independence is alarming and raises serious human rights concerns, which one needs to ponder over. Even if research establishes the deterrent effect of capital punishment, it is immoral and ultra vires, based on modern moral and ethical philosophy, to execute the convict, as it is a gross violation of human rights, especially the right to life, which is fundamentally inviolable.

Capital punishment stirs up fierce debates all over India and the world. The issue assumes importance because it raises fundamental questions on the role of the state in delivering justice, the scope of the authority of the state, the scope of fundamental rights, and whether the state can violate the fundamental rights of an individual for the greater common good. The spectrum of research on capital punishment is wide but, nonetheless, there is still immense scope of research in the subject matter. The growing volume of research and creation of advanced knowledge on the topic proves to be a motivation for writers.

The studies, so far, have argued upon the moral and philosophical viewpoints of capital punishment in the modern society. Others argue on lines of its justification or criticism vis-a-vis its deterrent effect. Capital punishment has a deterrent effect on crimes like homicide in the short run, but the effect of the same is negligible in the long run (Phillips, 1980). Sustein and Vermeule (2005) argue that capital punishment has a deterrent effect on crimes, but they fail to recognize the period of incidence of such an effect. In the present paper, the key focus is on arguing how capital punishment is morally unjustifiable considering an individual’s rights and human rights overall.

Another theme of argument is whether capital punishment is justifiable if there is a deterrent effect of such a punishment on crimes. Most of the authors agree killing is evil not only by the criminals but also by the state (Blumenson, 2007; Sustein & Vermeule, 2005). Some argue that the deterrent effect of capital punishment can be established and it is justified for the state to carry a “life-life trade-off” since it becomes a “lesser evil” because state killing is permissible for delivering justice and safeguarding citizens (Sustein & Vermeule, 2005, p.749). Bumenson (2007), in response to Sustein and Vermeule (2005), argues that the morality of capital punishment is not reducible merely to numbers to conclude that killing by the state to deter crimes is a “lesser evil.” Proponents of retributive justice argue that capital punishment is an effective tool when the state is inefficient in maintaining and delivering justice. Abolitionists argue that there is a scope for miscarriages in the delivery of justice to form a case against capital punishment.

The scope of rights and the critique of capital punishment vis-a-vis the fundamental human rights have also been a focus of debate. The life of an individual can be taken away by the state if it has a deterrent effect on crimes, for the greater good of society and for delivering justice to a wider spectrum of people (Sustein & Vermeule, 2005). This is a very “utilitarian conception of rights” as rights are seen as a resource of society and violation of individual rights in case of necessity as a feasible substitute for delivering justice (Blumenson, 2007, p.227).

Moral, ethical and political philosophy of capital punishment and the idea of state justice form a major argument of justification for abolitionists and their critiques. Deontological and teleological justification of capital punishment is that given the deterrent effect, it is justified to make a life-life trade-off for protecting the rights of the majority (Sustein & Vermeule, 2005). Authors support teleological justification since the end of providing justice to the innocent is important (Blumenson, 2007; Sustein & Vermeule, 2005). Blumenson (2007) argues that deontological philosophy fails to justify capital punishment since the means to the end is equally important in the philosophy, and the means of capital punishment is ethically untenable. The issue of interpretation of classical and modern philosophy also figures in the discussions of the literature on capital punishment.

The current body of scholarship has touched the aspect of human rights very superficially. Most of the literature in the field agree that capital punishment causes a gross violation of human rights (Blumenson, 2007; Dasgupta, 2011; Sustein & Vermeule, 2005). However, they do not show how or on what basis human rights are violated in cases of capital punishment. Also, they fail to produce a philosophical critique of capital punishment with respect to rights. The arguments against the death penalty, though morally sound, are not backed by the moral and ethical philosophy of life to launch a crusade against arguments of retributive justice and to make the case against death penalty stronger.

Capital punishment is ethically impermissible. The statement can be backed by the philosophy of human rights which considers certain rights of an individual as a prerequisite for survival and upon which the state cannot intervene, come what may. Rousseau (1762) argues that in the state of nature human beings are compassionate beings; reason backed by compassion forms the basis of a truly just society. The fundamental idea of state is of a contract of all the people in the state with one another. The state is therefore responsible for the protection of the life of all its citizens taking into consideration that it is morally obliged to serve all the members entering into the contract. After all, the fundamental end that any state aims to achieve is justice for all its citizens. Even one life taken by the state is a breach of such a contract and therefore, ethically immoral and unjust. With a focus on the desired objective, it becomes morally unjustifiable to argue in favour of death sentences for the delivery of justice since the means to achieve the ultimate aim is in itself inconsistent with the aim.

Focusing on the larger role of state and taking into account the conflict between the people in the contract, it becomes necessary to give thought to the deterrent effect of capital punishment. Though many scholars have argued that deterrence effect exists, it is a very broad generalization to make since the sample space chosen is very limited. However, the deterrent effect of capital punishment can be seen in the short run whereas negligible effect can be observed in the long run (Phillips, 1980). Arguing in favour of death penalty based on short-run deterrence in the statement that precedes means that to maintain the deterrence, regularity of such punishments is a must. Such an argument trivializes the value of life itself by portraying a utilitarian view of life, as one life is one’s own and not a societal resource, which one can subject to a trade-off for the cause of the society. Moreover, there exists no deterrence in the long run. In Canada, the homicide rate per 100,000 of the population fell from a peak of 3.09 in 1975, the year before the abolition of the death penalty for murder, to 2.41 in 1980, and since then it has declined further. In 2002, twenty-six years after abolition, the homicide rate was 1.85 per 100,000 of the population, 40 percent lower than in 1975 (Hood, 2002). Hence, the support of capital punishment based on deterrence argument fails to prove itself consistent with the reality.

The inconsistency in the argument on deterrence persuades the state to denounce capital punishment and look for alternatives, which are morally sound and more effective in maintaining law and order. Reformation and rehabilitation of criminals are one of the solutions to curb the increasing crime rate in India. In addition, structural functionalists would argue, given the sociology of structural functionalism, that most of the criminals are victims of circumstances and not intrinsically criminals. Criminality, in such a context, becomes a social construct and not an individual undertaking. The guilt of the criminals, in some way, is shared by the society, as it is a product of a social construct in which the criminal has lived. A death sentence, even for the most grisly crimes, in such a context, is not feasible since the solution lies not in killing the individual but in reforming the society as a whole. Rigorous imprisonments in total institutions, aimed at reforming the individuals, not only suffice as a punishment but are also an investment in human resources for a progressive, democratic society. The aim of punishments, for a progressive state, is not to pursue a spiteful vendetta against criminals but to re-socialize them into the mainstream. The goal of rehabilitation is to return the offender as a productive member of society (Lambert, 2004, p.5). Re-socialization helps in reducing crime rate as it dissuades the criminal from recidivating. Though resocialization is hard to achieve it makes way for a just, progressive, and liberal society.

Moving from the optimism of reformation of criminals to a slightly bitter truth, we must realise that no human being is above bias and prejudices. The decision on death penalty often depends on the conscience of and interpretation of cases by, and bias and prejudices of the judges. Research establishes that White people have higher support for the death penalty than do Black people (Arthur, 1998 as cited by Lambert, 2004). Political affiliation many times predicts the degree of support for the death penalty, with Republicans having higher support for the death penalty than Democrats (Bohm, 1991 as cited by Lambert, 2004). According to guidelines issued by the Supreme Court of India, the death penalty can be sentenced by the court only in the “rarest of rare cases” (Bacchan Singh vs. the State of Punjab, 1980). The fundamental problem with such a guideline is that it is open to interpretation by the judges across the country; it is needless to mention that their ideologies and interpretation of two different cases are much likely to differ. In case of such a difference in opinion, justice done to two different criminals for the same crime is different. Not only is the right to life breached in such a situation but also the right to equality before the law, which is fundamental to the Constitution of India. Thus, the vagueness of laws and directives perpetuates injustice.

Proponents of capital punishment argue that there would be an increase in the incidence of fake encounters and extra-judicial murders if capital punishment is abolished (Dasgupta, 2011, p.4). They argue that instances of extra-judicial killing are prevalent in naxal-hit areas of India. The argument is intrinsically flawed since its outlook towards state’s means of achieving its goals is very pessimistic. While making the above assumption, the author has portrayed a very primitive picture of society. Locke (1689) argues that society in its natural state is not intrinsically in a “state of war” but in a “state of peace” since human beings are gifted with the ability of reasoning which acts as a “natural law” for the maintenance of peace, law, and order in the society. An eye for an eye policy is a very problem-oriented approach to crimes and capital punishment rather than being a solution-driven approach. Capital punishment is more likely to instill fear in the citizens than to give them a sense of security since human beings are inherently peace-loving beings. Given the natural ability of human beings to be reasonable and compassionate, it would be untenable to argue that fake encounters would increase everywhere in India; few instances may be found but to attribute a demeaning outlook to the entire state machinery and portray human beings as beings of self-interest only is unjustifiable.

Every single argument in favour of or against capital punishment is debatable. There is immense scope for research in this field given the wide spectrum of viewpoints that scholars have, conflicting as well as consensual. Capital punishment, as argued during the course of the essay, is morally unjustifiable as it is inconsistent with the universal notion of human rights. Human rights, as the philosophy in the background of individual rights advocates, are essentially inviolable since rights are natural and essential for living. Finally, a society where the rights of every individual are respected, valued, and safeguarded by the state progresses rapidly. Hence, capital punishment finds no place in the modern democratic society and states should move towards phasing it out.



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Rakshit Mohan is a second-year student at the Willy Brandt School of Public Policy. His specializations are International Affairs and International Political Economy. He has previously interned at Carnegie India, New Delhi and has a keen interest in Indian foreign policy and Indian politics. He has published articles with the Chennai Centre for China Studies and the Maritime Executive.