There is a staggering incoherence between death penalty and the very raison d’ętre of punishment mechanism in a civilised society. Besides the metaphysical question on the collective’s authority over individual’s right to life, the logic of capital punishment can be contested from a purely unromantic point of view, by weighing up what such a measure eventually accomplishes. However before considering why capital punishment fails to serve the purpose, we need to make certain the underlying principle of our punitive system. What is the nature of justice we secure by penalising the guilty? If punishment is all about society avenging the victim, then it obliges us to accept the principle of mirror punishment or retributive justice. But I am confident that none of the modern societies or their judicial organs would correspond lex talionis to justice. Retributive justice is perceived synonymous to barbaric justice and rightly so.
Correction of the guilty appears to be the better and viable rationale for punishments in progressive societies, where being a member of reason-using human species entitles individual to a special consideration. Retributive justice takes commitment of crime to be deliberate and voluntary forfeiting of this entitlement, while civilised societies believe in certain human privileges deprivable under no circumstances. Hence, what punishments intend is to reform the guilty, to make him a better social being, and to lead him to involve in the process of “Restorative Justice”. Prisons in such an arrangement are nothing but correction centres, and I would like to call this transition phase Reformative Justice. I am very much aware of the limitations of an ideal principle as such. Nevertheless, everybody would agree that this is a better rationale for punishments than retributive justice. Now let us discuss the underpinnings of reformative justice a little more and see why death penalty is invariably the carryover of retributive justice.
Looked upon with empathy rather than vengeance, the offender is never forsaken by society when reformative justice is in operation. A mature society reckons the worth of each of its members and takes up the superior responsibility of redirecting the guilty to seek remorse, reparation and the norms of social acceptance. Thereby we do not lose the progressive contribution he/she would have made otherwise. To forsake an individual is to judge him incorrigible. And the depth of human psyche is far too puzzling for the collective to make that judgement. We ought to strive, ceaselessly, to save an individual, for the struggle is worth it. Capital punishment can never fail to breach this understanding of punishment.
It is, however, argued that capital punishment deters people from committing heinous crimes and doing away with it would let loose the crime rates. Though this argument sounds reasonable at the outset, the defence of death penalty as a preventive mechanism is unsustainable. A closer look confirms that this argument is a derivative of retributive justice. To threaten a prospective criminal with capital punishment is to remind him of the societal vengeance. What deters a criminal, here, is the fear of retribution and not his conscience or self-restraint. However, capital punishment being a derivative of distributive justice may not be a sufficient condition in itself, especially if it effectively curbs crime rates. But it does have further implications.
Capital Punishment as deterrence
Thinking of ‘fear of punishment’ as the only deterrence to crimes turns a blind eye on the possibility of there being people who do not fear punishment. People who are confident of getting away with the crime by leaving no evidence or somehow evading law constitute the first group not susceptible to fear of punishment. The principle is even more ineffective against law breakers who willingly accept the penalty. Civil disobedience was one of its early manifestations. But such negation of the fear of punishment assumes greater relevance with respect to terrorism. Terrorist deeds are reckoned with such fury and spite by the collective that the public outcry to award capital punishment in those crimes is unmatched. In fact, terrorism has often been the pretext for prolonging the abolition of capital punishment. On the contrary, terrorists are prepared for any kind retribution and the odds of martyrdom enthrall them. To put into effect the principle of lex talionis in treating terrorists actually exposes the vulnerability of the collective. It proves that the society is not matured enough to get rid of its yearning for vengeance. But the drawback of the practice of retributive justice in dealing with terrorism does not stop with its ineffectiveness. It provokes further hostility, bloodshed and felonies. Worse still, this makes it easier for terrorist outfits to find new recruits as antagonism erupts in greater proportions. Retribution always ignites retribution. The defence of capital punishment as a preventive mechanism is statistically untenable too. Among the 100 countries which have abolished capital punishment for all sorts crimes, very few have alarming rates of crime rates.
The last resort for defending capital punishment is to ask what else can be done to the criminals who bully the peaceful existence of society, the criminals who are labelled threats to the lives of many others. States, it has been pointed out, spend humongous amount of money to keep them safe in prisons. Such expenses are often highlighted to elicit a public demand to hasten the execution of the guilty. I would argue that the guilty shall be offered counselling, opportunities for social life under watchful eyes and above all persistence in directing him to repentance. Easier said than done, one might retort. This involves, I agree, risks of various sorts including monetary. But it is indeed worth the risk and the money.
Public Psyche and beyond
And answering again, Pilate was saying to them, “Then what shall I do with Him whom you call the King of the Jews?” And they shouted back, “Crucify Him!” But Pilate was saying to them, “Why, what evil has He done?” But they shouted all the more, “Crucify Him!” (Mark: 12-14)
The biblical account of the trial of Jesus Christ tells us a few things about the role of collective conscience in matters judicial. One, it can easily be manipulated. Two, the choice of the collective, therefore, could be the choice of the few in effect. And three, the popular choice does not become justice per se, by mere virtue of numerical majority. As mentioned earlier, what motivates public demand to award capital punishment to certain criminals is vengeance and not reason. Nevertheless, the collective’s crave for vengeance is, unlike personal vengeance, a shallow feeling. It is vulnerable to manipulation and short-lived if not provoked by forces outside the public psyche. Keep in mind that media’s ability to shape such public opinion and to channel it, has hit outrageous heights in recent years.
But what makes me uncomfortable is not the public inclination to capital punishment, but how easily the mob gets the government to agree their whims and fancies. It pains me more to see capital punishment being used as a political strategy rather than judicial act. Once we agree death sentence is inherently wicked, it is ridiculous to leave such decisions in the hands any mortal, definitely not in the hands of an ever-corruptible government.
Abolishing capital punishment in India could be translated as the softness of an already weak state. But reluctance to take this step amounts to turning our back to human dignity and civilisational progress. Furthermore, it denies us a better way to deal with crimes and closes down the prospects of restorative justice forever.
“Man has no right to kill his brother. It is no excuse that he does so in uniform: he only adds the infamy of servitude to the crime of murder”