Question: Mary Varghese

It seems that the ‘mood of our nation’ is welcoming the death penalty to the criminals. In fact, can penalty to death eradicate crimes from our society?

Answer: Saji Mathew Kanayankal CST

It is true that the ‘mood of our nation’ seems to be accepting the death penalty to some hideous criminals and people in general accepts the immediate retaliation to the crimes committed. Many contemporary incidents and their aftermath underline the ferocity of this tendency as well. Since the supreme court dismissed the review petitions of all four convicts of Nirbhaya gang rape murder, as of now their execution is to be taken place on 01 February 2020. The four accused of the Hyderabad gang rape murder were shot dead in an encounter with the police on 06 December 2019. The ‘public’ in general, the media, the politicians and the celebrities have praised the heroic activities of the police officer and people have even granted him some awards. We could hear only very few voices of dissent.

THE RATIONALE OF DEATH PENALTY
We can see death penalty or capital punishment as the most serious form of punishment from the time of ancient Greek under the laws of Draco. Though Plato argued that such kind of punishment should be used only forthe ‘incorrigible,’ it was common in Greek city states. In ancient civilization, the rationale of capital punishment was the legal principle of ‘lextalionis’of ancient period, especially the principle appeared in the Code of Hamurabbi, i.e., “an eye for an eye, a tooth for a tooth and life for life.” But in many places instead of taking life, the criminals were deported to some remote areas and they were forced to lead their life with certain struggles. At times many would have died due to natural calamities or some sort of illness or epidemics. But in some societies, it was done with more cruel forms such as crucifixion, forced gladiator combat, boiling in oil, breaking on the wheel, decapitation by a guillotine or stoning. However, the emancipation of the enlightenment in modern era offered newinsights on the crimes and human dignity and since the middle of 1990s, capital punishment is abolished in most of the countries. As per the data of United Nations, among the 195 countries in the world only 55 nations retain capital punishment now. India is one among them.

TIT FOR TAT
We can trace out solid argumentations for the validation and support of capital punishments. As it is argued, people those who have taken the life of another have forfeited their own right for life and therefore it is justifiable to take their life as well. It is based on the principle of retributive justice, which functions as a corrective force in the society by repairing the violated order of justice through the administration of appropriate punishments to offenders and thus reinforce moral indignation not only to the victims or their relatives, but also to the citizens in general. They also see a kind of deterrent effect, on potentially violent offenders for whom the threat of imprisonment or similar hard punishment may not be sufficient to restrain from hideous crimes. The severity of punishment may discourage certain criminals from doing unlawful acts.

It is also a means to protect the society from a greater harm. The argument of Thomas Aquinas, is used to substantiate this view. Aquinas exemplifies the society in relation with human body. According to him, every part of a human body is directed to the whole and every part exists naturally for the sake of the whole. In order to preserve the health of the whole body or the person, if the body demands the excision of a member, when it is decayed or decomposed “it is praise worthy and advantageous to have it cut away.” He compares every individual person with the whole society, as part of whole and thus he concludes, “if a man be dangerous and infectious to the community, on account of some sin, it is praiseworthy and advantageous that he be killed in order to safeguard the common good, since a ‘little leaven corrupts the whole lump” (Summa Theologiae, II-II, 64,2).

HUMAN PERSON BEYOND THE ACT
People who oppose death penalty would argue that death penalty is not a proper remedy for serious or notorious crimes, because by this act, only the person committed is eradicated, neither the act nor its effect. It is a relic of earlier days of penology, where slavery, branding and other corporal punishments were common. It is true that the victim or his/her relatives or the society may get a kind of psychological relief or satisfaction, that the perpetrator is rewarded with the due punishment. But does it actually produce any positive result? It is just like a systematic or legal revenge. Capital punishment is an emotional form of retribution where revenge is personified and retribution is done on the basis of emotions, which often loses sight of rationality and proportionality. Crime is a symptom of violence, similarly death penalty also can be seen a symptom of violence that epitomizes the tragic inefficacy and brutality of viciousness, rather than reason. It is certain that violence will not be eradicated with violence. When violence is countered with violence, the net result will be total annihilation. Moreover, the penalty of death is irreversible and once the life is taken, it is not possible to give it back! A society that respects life cannot accept taking the life of another’s life! There is also the possibility to take the life of the innocent people. If there be any slightest possibility to take the life of the innocent, the death penalty should not be executed for the innocent or less culprit may become the victim of the system.

Many studies and analysis prove that the death penalty is not a more effective deterrent than incarceration. It is argued that a reasonable person is deterred not by the gravity of the sentence but by the detectability of the crime. There are several factors that lead a person to crime and deterrence is only one among them. The report of the Justice J.S. Verma Committee (2013) pointed out that that the capital punishment is a regressive step and may not provide deterrence. The committee also quotes the words of Justice Potter Stewart, “the penalty of death differs from all other forms of criminal punishment, not in degree, but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.” Therefore, in its conclusion the committee suggested to abolish death penalty in India or at least make moratorium for it till the abolition.

In the penalty of death, the convict does not get a chance to renew his/her life. It is also a fact that persons, who commit serious crimes quite often do not premeditate on their action nor think about its far-reaching consequences. Most of the capital crimes are done in the heat of a moment. Mostly the crime is done out of the stresses of emotions or due to the influence of drugs or alcohol, or pornography or similar influential evils. The crimes like rape and related murder would be the bye-product of many other social evils such as devaluing and instrumentation of women, domestic violence and discrimination of gender etc., The circumstances, the low rate of ethos of the society and the poor education system may lead the persons to crimes. Without removing these social evils, it is not possible to eradicate the crimes. It is the primary responsibility of an educated and rationally matured society to find out the root cause of those crimes and to eliminate them from the society. In the case of well-planned crimes, the criminal ordinarily plans to escape from the detection, arrest and conviction. The threat even to the serious punishment will not deter them from such crimes. In some cases, the convict will have the tendency to crimes, which is deeper than any external facts. In such cases the society has the responsibility to make some confinement centres for them.

Some would point its objection to death penalty based on the question of fundamental justice. In many cases the crime was not convincingly proved and in some cases the accused were not actually guilty. It is reported that in USA, since 1973 more than 160 people who were sentenced to death were relieved later on finding that they were innocent. As Justice PN Bhagavathi says; “death penalty in its actual operation is discriminatory for it strikes mostly against the poor and deprived.”

In his encyclical Evangelium Vitae Pope John Paul II asked the society to view the death penalty in the wider context of human dignity. According to him the primary purpose of punishment should be “to redress the disorder caused by the offence.” Therefore the “public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom. In this way authority also fulfils the purpose of defending public order and ensuring people’s safety, while at the same time offering the offender an incentive and help to change his or her behaviour and be rehabilitated” (Evangelium Vitae 56). For Pope Francis death penalty is “no longer justifiable by society’s need to defend itself and it lost its legitimacy due to the possibility of juridical error.” According to him capital punishment is “an offence against the inviolability of life and dignity of the human person, which contradicts God’s plan for men and society.” Rather than rendering justice to the victims, it fosters mere vengeance. On October 11, 2018, by changing the text in the ‘Catechism of the Catholic Church’on capital punishment, he asserted that “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person” (Catechism of the Catholic Church, 2267).

Why do we not think to help the victims of the crimes and their family members in a better way than giving the convicts death penalty? It is true that the severe trauma and loss, the psychological shock and imbalances caused by the crime will not be regained by the mere execution of the death penalty to the convict. By taking the life of the perpetrator do we really gain anything except a kind of self-satisfaction or psychological relief? Can the victims be healed or to overcome the trauma through the capital punishment? Do we not have any other better option in a progressive and developing society? Finally, we have to put our trust on the fundamental goodness of a human person. As Justice Sharad A. Bodde, the Chief Justice of India opined, “If one goes by innocence of a human being, even the worst criminal has an innocent heart. There is no one who is a criminal at the deepest level.” If so, there is always the possibility of repentance and transformation and we have to open to the actualisation of such possibilities.