Randomness and the Death Penalty
Some serious stuff now (the result of a major argument in real life). Jokes will come later.
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I read the 187th Law Commission Report years ago in Law School for a project. I revisited it last week and found this passage about this case of Harbans Singh. There were three accused - Harbans, Jeeta and Kashmira Singh - all sentenced to death by the Allahabad High Court for equal participation in a murder of a family of four persons.
Each accused filed a separate special leave petition (an appeal of sorts) to the Supreme Court. Jeeta Singh's appeal came before a bench consisting of Justices Chandrachud, Krishna Iyer and NL Untwalia. It was dismissed - in other words, his death sentence was upheld and he was executed in 1981.
Kashmira Singh's petition came before Justices Fazal Ali and Justice Bhagwati. After considering his case, the judges, who allowed the appeal to be heard only on the question of sentencing, reduced his sentence to life imprisonment. Justice Bhagwati was well known for his stand against the death penalty. As a result, one accused was executed and the other was given life imprisonment for the same offence.
Things get more unpredictable - the third accused, Harbans Singh's petition came up before two judges who dismissed his petition. He applied for a review, which was also dismissed. Apparently, the decision in Kashmira Singh's case was a part of an office report that came along with the petition, but this office report was not brought to the court's notice when the review was actually heard in court. Kashmira Singh, presumably out of desperation, filed another writ petition that came, fortunately for him, before a Bench that had Justice Bhagwati on it. After noting these bizarre facts, the Court sent the petition to the President for clemency.
Justice Bhagwati writes:
"The question may well be asked by the accused: Am I to live or die depending upon the way in which the Benches are constituted from time to time?"
There remains, today, no justification for the death penalty. We're talking of a state taking someone's life - something it theoretically, politically, morally has no right to do. As pure retribution, the death penalty is uncivilised and retrograde; studies have shown that its claims as a deterrent are dubious - try telling the next Kasab he'll be hung for his actions; and it rules out even the smallest chance of reform. Above all this, its irreversibility makes it so darned risky. The New Yorker has this frightening piece on an innocent man being killed by the state of Texas. Given India's chaotic police and investigation mechanism, the dangers are even more stark. Leaving people's lives at the hands of judges' political leanings is nothing short of idiocy.
Revenge cannot justify our criminal punishments anymore, surely.
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3 replies:
It's difficult to have these discussions on the death penalty because, in order to have them, you have to admit that the system of justice (regardless of where you live) is fundamentally flawed. People -- especially those involved in the system, and I give the hairy eye to judges in particular -- seem allergic to the possibility of flaws. But the fact remains that we can only make very informed guesses on guilt and innocence in any given case. Even when something seems certain at the time it turns out that DNA evidence, recanted witness testimony and often a system that can be hostile to defendants can skew a verdict. Judges and juries are never infallible but they're often not given the correct material to work with.The death penalty is irreversible. There is no penalty for getting it wrong, but the execution of innocents is the reason why we bring murder cases to trial, so in the case of executing a man who has not committed a crime we are perpetuating this problem.
I read the New Yorker article when it came out. (I'm a dutiful subscriber.) It gave me nightmares. Nobody does investigative journalism like that publication.
As more and more states repeal the death penalty or impose moratoriums, we hear that the reason for this is because of the rate of wrongful convictions. Texas is among the worst offenders in the wrongful execution category but there are other states like Illinois, whose wrongful conviction rate was so poor the corrupt governor called a moratorium on executions. There have been a rash of death penalty moratoriums in the country over the last decade. After new investigative and scientific breakthroughs we are now getting a good glimpse as to the limits of the human ability to smoke out guilt.
Even under cases of absolute certainty (assuming it exists), what is the most ethical way to kill someone? Lethal injections, which are often seen as the mildest method, cause paralysis and seizures. The electric chair was barbaric. Hanging is excruciating. The Guillotine was banned in the seventies. I believe you can still be executed via a firing squad in Utah.
I'm not sure if the Indian constitution has restrictions on these methods -- ie, that the state is required to execute in the most humane way possible. Regardless; it's a real conundrum. It's impossible to execute without causing pain.
The hypocrisy (and most of the support) comes from people who favor the death penalty and remain conservative on other matters of life. If, for example, the fetus is a human being and immune from harm, how does killing suddenly become morally sound? And in a system in which we're never going to be sure that we're murdering the right person, it's doubly unconscionable.
assuming cases of absolute certainty exist, i still don't think the death penalty should be allowed for murderers, probably because I think paedophiles are guilty of a far wprse crime. correct me if i'm wrong, but i think it is also easier to identify those guilty of paedophilia. those people should be left on a deserted island full of starving komodo dragons.
but yes, the death penalty isn't the most efficient way of doing things, and injections certainly arent the best way of accomplishing death. breaking their neck might be much better, no?
While I agree with everything said here, I am troubled by the lack of empathy for what the victim (even if dead) and his/her family must feel. This is where all human rights activism with reference to crime fails -- it is almost inevitably identifiable with the offenders than their victims -- and why the subject will always remain contentious.
There is a definite injustice in expecting a random someone who has lost a precious life in the worst way possible to believe that the beast that did it has to be viewed in the context of human rights. If you were to read Dennis Lehane, beast would be too kind a way to describe some of the perpetrators -- there are, in fact, no words in the human vocabulary for such pre-meditated evil. Revenge is an entirely natural and human response to the defilement and death of an innocent. There was something decidedly abnormal about Gladys Staines’ forgiveness.
In the case you describe, I am powerfully tempted to think that atleast a third of justice was done, given all the flaws in the judicial system. Also, the Kasab comparison does not work. He is no ordinary criminal. Read Nagarkar on jihad in Cuckold. But, yes, there is no defence against it. As for dubious stats, my guess is that Saudi Arabia has the lowest crime rate in the world and, no, I am advocating we adopt their concept of justice.
Having said this, I accept that lawmakers and keepers must remain dispassionate and objective, that they must set aside lay outrage as they mull on matters of justice, that they are protecting something profoundly larger and more important. But with the caveat that the victims cannot be expected to appreciate this or thank them for it, although they do eventually come to terms with it, given that vendetta happens only in the movies. Meanwhile, the ‘rarest of rare’ principle gives them something to cling to.
There is a certain balance in ambiguity, counsellor, and it is far more just (I choose that word after due consideration) than resounding blacks and whites ever will be.
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