As far back as in 1868, one Mr. Gilpin introduced a bill in British Parliament for abolishing capital punishment or death penalty. The liberal philosopher JS Mill opposed such abolition. Mill argued that the passage of the bill for abolition would be a ‘fatal victory’, and reflect ‘an enervation, effeminacy, in the general mind of the country’. Immanuel Kant was harsher in his support of capital punishment:
The penal law is a Categorical Imperative; and woe to him who creeps through the serpentine –windings of Utilitarianism to discover some advantage that may discharge him from the Justice of Punishment, or even from the due measure of it For if Justice and righteousness perish, human life would no longer have any value in the world.
... Whoever has committed a murder must die. ...
Our purpose in beginning with citations from these two great philosophers is to dispel the notion that the case for abolition of capital punishment is obvious and straightforward. Opponents of death penalty often display nauseating moral smugness, and portray supporters of death penalty as blood- thirsty barbarians favouring an outmoded, savage practice. Capital penalty needs a balanced and sober approach.
Nature and definition of punishment
Moral philosophers consider punishment as made up of five elements. A punishment must (i) involve some pain or unpleasantness; (ii) must be administered under an existing law or rule;
(i) must be administered to someone who has been adjudged guilty of an offence; (iv) must be imposed by a person other than the offender; and (v) the punishment must be imposed by a rightful authority. These aspects of punishment are too well known to need any elaboration. By combining these five ingredients, we can formulate a definition of punishment. Punishment is harm inflicted by a rightful authority on a person who has been adjudged to have violated a law or rule. This definition sums up the legal conception of punishment. There can be other types of punishment as in parental discipline or in monastic orders.
We need to briefly consider theories of punishment since they underlie many arguments for and against death penalty.
Retribution
‘Retribution’ is punishment awarded for a wrong done. It is the view that any offence merits punishment, and the offender deserves it. Conventional theorists consider retribution as a principle of justice or retributive justice. In this view, offenders should be made to suffer in kind for the harm they caused to others.
There is another dimension to retributive justice. In any society, restrictions are placed on freedoms of people. Thus, one cannot steal someone else’s car. If the thief is not suitably punished, it constitutes a form of injustice against law abiding citizens. Leaving crimes unpunished will disturb the social balance of fair arrangements, and will harm society. Hence, it is essential to impose just and proportionate punishments on those who break laws enacted by society.
Prevention
According to preventive theory of punishment, criminals should be penalised so that they do not commit the offences again. If a robber is locked up, he will be unable to steal while in prison. The punishment will make him realize that stealing is not a costless or painless operation.
Deterrence
The deterrence theory argues that criminals should be punished so as to dissuade or discourage others from committing crimes. It serves as a kind of warning to law breakers. It will thus help in lowering crime rate. Further, in order to be efficacious, punishment has to be severe enough and known to all concerned. Its visitation on criminals caught and charged should be certain.
Reform
The reform theory holds that punishment should induce criminals to realise their error in violating legal codes, and dispose them to follow law in future. Reforming criminals and their rehabilitation usually go hand in hand. But they are conceptually different. Reform seeks to change a criminal’s attitudes, and wean him away from anti-social behaviour. Rehabilitation seeks to enable a criminal to become a useful and productive member of society.
The above four theories of punishment are not mutually exclusive. They overlap, and their elements have to be combined in order to make punishments morally legitimate. We may note that preventive, deterrent and retributive theories of punishment can justify death penalty. With this background, we can consider the arguments in support of and opposed to death penalty. Shorthand expressions are often used to refer to protagonists of the two rival positions. Those who support reinstituting or retaining capital punishment are called retentionists. They believe that capital punishment is justified in heinous crimes like premeditated or cold blooded murder. Abolitionists believe that capital punishment is never morally justified. We will now consider these opposing viewpoints.
Arguments ‘against’ and ‘for’ death penalty
The following account first gives arguments opposing death penalty and then the arguments supporting death penalty.
(i) Against : The most common argument against capital punishment is based on the sanctity of human life. Death penalty, according to critics, is legal murder. The crime committed by a criminal does not detract from the inherent value of his life. Citizens can be protected by imprisoning murderers without parole. Death penalty like legal torture and mutilation should have been abolished long ago.
For : Supporters of death penalty argue that it actually upholds the value of life by punishing depraved murderers. In this way, it shows respect for the life of the murder victim. Further, the logic based on value of life argument is false. If we extend this logic, then legal fines would imply lack of respect to property rights, and imprisonment would negate the principle of freedom. Premeditated or cold blooded murder is the gravest crime, and those who commit it should pay the maximum price with their own life. Moreover, death penalty cannot be placed among, to use phrases from US Constitution, ‘cruel and unusual’ punishments. Whether a punishment can be so characterized depends on contemporary moral standards, and by these standards, death penalty is neither cruel nor strange.
(ii) Against : Abolitionists observe that capital punishment is imposed with class bias. It operates against the poor, the uneducated, and the minorities. First, the poor and the underprivileged are more likely to be hanged than the rich and the privileged. Secondly, the death penalty is more likely to be imposed when the victim is poor than when he is rich.
For : Retentionists argue that this objection is not against death penalty per se, but the manner it operates at present in the judicial system. The class bias argument can be applied to other punishments, and in fact---as Marxists do---to the entire group of judges. The answer lies in reforming the judicial system and not in doing away with capital punishment.
(iii) Against : Abolitionists make another point based on risk of loss of innocent lives if there is any miscarriage of justice. Since death penalty is irrevocable, there no way of compensating wrongly executed persons. They suffer irremediable loss.
For : Retentionists point out that the chances of execution of innocent individuals are extremely low. The judges bend over backwards to exclude even a shadow of doubt about the guilt of the accused. Besides the intense judicial scrutiny, the accused are allowed to file mercy petitions to constitutional heads. The chances of convicting innocent people have greatly reduced with advances like DNA evidence.
(iv) Against : Contrary to common sense, death sentence has, as statistical evidence shows, no deterrent effect. Most murders happen on the spur of the moment due to uncontrolled passions arising from sudden provocation. As murderers seldom think beforehand about the crime, death penalty has no deterrence.
For : Statistical evidence is unreliable in matters of this sort. Normally, the risk which criminals perceive in any crime depends on the scale of the punishment. It stands to reason that death penalty carries the highest risk and deterrent effect.
(v) Against : Death penalty is a form of blood thirsty revenge. Law does not sanction torture of murderers who torture their victims; nor does it permit rape of rapists. In this way, penalties have become refined and humane. Hence, murder should not lead to death penalty.
For : Notwithstanding the high sounding humanism of this view, it fails to recognizethat capital punishment alone balances the scales of justice in some cases. The purpose of punishment is not only preventive or reformative but also retributive. In crimes like coldblooded murder, proportionate justice has to be done and moral retribution has to be taken. Society has the right and duty to express its moral outrage over heinous crimes committed against it.
(vi) Against : Another argument against death penalty is that murder convicts hardly commit murder again either when in prison or when on parole. Hence, executing them serves no preventive purpose.
For : In answer to this, retentionists argue that executions certainly prevent murderers from committing any more murders. If sentenced to prison, they can still be a threat to fellow inmates and prison guards. In any case there are other strong arguments in favour of death penalty.
(vii) Against : There are two other arguments sometimes used in the debate on capital penalty. One is that it compromises the judicial system. Since judges are reluctant to impose death and sentences, they play down or undervalue even the sound evidence which the police produce. Even other authorities find excuses for condoning the offence.
For : The retentionists rebut the argument by observing that the problem is not with death penalty, but the way judges and others handle it. The remedy lies in correcting the procedures than in abolishing death sentence.
(viii) Against : Finally, it is argued based on US experience that executions are more expensive than life sentences. This counterintuitive fact is derived by calculating the time costs and legal expenses which death penalty cases entail.
For : The retentionists argue that the matter is not about costs but about principles of justice.
IPC prescribes death penalty for grave crimes such as murder, rape resulting in victim’s death, waging war against the State. Similarly, The Arms Act, The Narcotic Drugs and Psychotropic Substances Act, The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, The Commission of Sati (Prevention) Act, The Army/Air Force/navy Acts, contain capital punishment for serious offences.
Article 21 of the Indian Constitution guarantees the Fundamental Right to life and liberty for all persons. No person, it says, shall be deprived of his life or personal liberty except according to procedure established by law. Courts interpreted this to mean that that state can deprive a person of his life subject to fair and valid procedure under law. The central government has consistently maintained that it would retain death penalty to act as a deterrent, especially for those who are a threat to society.
The Supreme Court upheld the constitutional validity of capital punishment in “rarest of rare” cases. It ruled that if capital punishment is provided in the law and if the procedure is fair, just and reasonable, death sentence is constitutional. “Rarest of rare” cases imply that courts should specify “special reasons” while awarding death penalty. It should be given only when the option of awarding life imprisonment is “unquestionably foreclosed”. Courts have to balance aggravating and mitigating circumstances in individual cases to ascertain whether ends of justice can be met by any punishment less than the death sentence. This will depend on two factors. First judges have to see if there is something uncommon about the crime which makes life imprisonment inadequate and calls for death sentence. Secondly, the circumstances of the crime should be such that even after according maximum weightage to the mitigating circumstances in favour of the offenders, there is no alternative except to impose the death sentence.
In some laws, punishments include compulsory death penalties. The Supreme Court ruled that such mandatory death penalty is unconstitutional. But some laws still have mandatory death penalties, and a few of them are before the Supreme Court.