he cost of prisoners on death row, the complex task of ensuring a painless mode of carrying out the judicial order and the growing international rejection of the death penalty must weigh against the pain of a victim’s family seeking justice.
“What they (the two accused) did, cannot be condoned, but it (the
offence) is not so heinous and abhorring that warrants death....It was
just a murder. That is it...They (the two accused) have also suffered
the sentence for 16 years,” held the Supreme Court of India (October 9,
2015) while rejecting the petition of Ms. Neelam Katara, mother of
Nitish Katara, seeking enhancement of sentence.
R.K. Raghavan
The curtain has in all probability come down on the Nitish Katara case of murder,
committed thirteen years ago by the son of a politician and his cousin.
They are currently undergoing a jail term of 30 years. In dismissing
the plea of the victim’s mother for imposing the maximum penalty, the
Supreme Court said the murder was neither an ‘honour killing’, nor was
it the rarest of rare cases meriting capital punishment. Ms. Katara is
however, determined to continue to “fight for justice.”
It is the intensity of the pain of a victim’s family that often explains
their disappointment at the court not awarding death. In the eyes of
some, this resolve to get the severest of penalties could possibly smack
of vindictiveness. I believe however, that this dimension to the
natural feelings of associates and relatives of the victim should not be
ignored by those, including criminologists across the globe, who
consider that the debate over the rightness of the death penalty is
hackneyed. The Supreme Court’s dismissal of Ms. Katara’s plea
is liable to be discussed for a long, long time. The fact is each day
brings in a new point of view to the discussion on adequacy of
punishment. This is something which raises many absorbing questions
related to the core of penology. A stand by some individuals that there
are no further issues to be resolved in as serious a matter as capital
punishment is being didactic and insensitive.
U.S. discourse
No discussion of the rationale of a death sentence will be meaningful without reference to what is happening just now in the U.S., a country prone to violent crime. A large number of cities have reported an increase in homicide rates this year. Added to this are mass killings of the kind reported recently from a community college in Oregon and earlier at an African-American church in South Carolina, which are said to have enhanced fear levels and strengthened the plea by many individuals and organisations for greater gun control and more deterrence in sentencing policies. Ironically, 19 of the 50 States do not have the death penalty on their statutes. Despite this, more than 1400 convicts have been executed in the country since 1976, the year when capital sentence was restored after a four-year de facto moratorium flowing from the Supreme Court decision in Furman v Georgia.
No discussion of the rationale of a death sentence will be meaningful without reference to what is happening just now in the U.S., a country prone to violent crime. A large number of cities have reported an increase in homicide rates this year. Added to this are mass killings of the kind reported recently from a community college in Oregon and earlier at an African-American church in South Carolina, which are said to have enhanced fear levels and strengthened the plea by many individuals and organisations for greater gun control and more deterrence in sentencing policies. Ironically, 19 of the 50 States do not have the death penalty on their statutes. Despite this, more than 1400 convicts have been executed in the country since 1976, the year when capital sentence was restored after a four-year de facto moratorium flowing from the Supreme Court decision in Furman v Georgia.
There is something more than numbers here. It is the complex history
that surrounds the issue of the mode of judicial killing in the country
which is of interest. Currently, administering a lethal injection is the
accepted procedure to execute a prisoner awarded the death sentence. An
option to choose hanging is available to those convicted before this
was introduced. It is significant that the constitutionality of lethal
injection has been upheld by the U.S. Supreme Court.
Hanging was one of the first methods employed by states to execute a
condemned prisoner. After a series of blotched hangings in the 19th
century, many switched to electrocution, following the recommendation of
a Gerry Commission (1886) appointed to suggest an alternative mode.
After New York first introduced electrocution, other States followed
suit. This form of execution also came into disrepute, as sequel to a
few cases of failure of the electric chair, which necessitated repeated
application of high voltage electricity on a prisoner for the successful
completion of an order of sentence. This practice therefore, came to be
challenged as a “cruel and unusual” punishment, prohibited by the U.S.
Constitution.
In view of this development, many States started enforcing the
administration of a lethal injection, comprising a single or combination
of drugs. While hydromorphone is widely used, a recent entrant is
midazolam. Some human rights organisations have cited research to raise
doubts over the claimed painlessness of drugs employed in executions,
and have charged that lethal injections are also cruel. However, in a
case of 2008 (Baze v Rees) and in a more recent (2015) case (Glossip v Gross),
the U.S. Supreme Court upheld the constitutionality of lethal
injections. In the former case, while concurring with the majority
opinion, Justice John Paul Stevens however, raised doubts about
Kentucky’s three drug protocol, especially the use of a paralytic agent,
panucronium bromide. He believed that this matter could generate a
future debate. Also, while hearing the Glossip case, Justice Stephen
Breyer was noticeably candid about his aversion to the death penalty. It
is against this backdrop that one must follow the proceedings of the
U.S. Supreme Court which began a new term on October 5. Though the
constitutionality of death sentence is not directly listed to come up
before it, any stray observation by any of the nine judges in associated
matters could provide a pointer to the future.
The execution of a woman, Kelly Gissendaner, on September 30 in Georgia,
has added spice to the controversy, although only about one per cent of
those executed in the U.S. till now have been women. And Gissendaner
was the first woman to be executed in Georgia in about 70 years.
Methodological problems
I quizzed Professor Daniel Silverman of the Department of Criminal Justice, Temple University, Philadelphia (from where I graduated more than two decades ago) on current trends in the U.S. on the death penalty. Prof. Silverman, an attorney who defends many prisoners on the death row, teaches a course on capital punishment at Temple. He tells me that States are finding it increasingly difficult to procure the drugs required to carry out an execution. As a result there is once again an alarming frequency of botched executions, resulting sometimes from the use of wrong drugs. The whole process is shrouded in such mystery that doubts have arisen over the efficacy and fairness of the system.
I quizzed Professor Daniel Silverman of the Department of Criminal Justice, Temple University, Philadelphia (from where I graduated more than two decades ago) on current trends in the U.S. on the death penalty. Prof. Silverman, an attorney who defends many prisoners on the death row, teaches a course on capital punishment at Temple. He tells me that States are finding it increasingly difficult to procure the drugs required to carry out an execution. As a result there is once again an alarming frequency of botched executions, resulting sometimes from the use of wrong drugs. The whole process is shrouded in such mystery that doubts have arisen over the efficacy and fairness of the system.
Prof. Silverman also refers to the overall sentiment within the country
against the death penalty. During the past decade, seven States either
abolished it or held it in abeyance. There is further the sharpening
division on the subject within the U.S. Supreme Court, between liberals
and conservatives. Four of the nine judges are said to believe that
death penalty is constitutional, while two clearly consider it
otherwise. It is difficult to speculate what the other three would do
when the matter comes up before them in the future. It is just possible
that the debate may linger on inconclusively, and will ultimately be
settled only when one or two new judges join the court in the next few
years. According to Prof. Silverman, the U.S. Supreme Court is now quite
sensitive to what is happening internationally. This is why it is
reasonable to believe that it will take cognisance of the worldwide
trend of nations giving up the death penalty.
Finally, there is also the factor of costs involved here. There are now
more than 3000 prisoners on death row in U.S. prisons. Organising
sustained legal help for a majority of them adds on to the already huge
commitment to look after their food and health needs. While this
particular issue is beyond the purview of courts, it could weigh heavily
on the administration while reviewing the expediency of retaining the
death penalty.
Challenge for India
The trends that characterise the U.S. scene are very relevant to India, although in a slightly less acute form. We have had about 1300 death verdicts for the whole country during the period 2004-14. Of these, only four have ended in actual execution. Prisoners in such cases certainly escalate costs of prison management. While this argument may not hold water with those who stand rigidly for the retention of capital punishment, there is the overwhelming international trend in support of abolition that can hardly be ignored. The Law Commission’s recent weighty report that favours giving up the death penalty, except in cases of terrorism, should also motivate the government into swift action. Apart from promoting the cause of a humane jurisprudence, a decision to do away with the death sentence could have a hugely positive impact on our international image.
The trends that characterise the U.S. scene are very relevant to India, although in a slightly less acute form. We have had about 1300 death verdicts for the whole country during the period 2004-14. Of these, only four have ended in actual execution. Prisoners in such cases certainly escalate costs of prison management. While this argument may not hold water with those who stand rigidly for the retention of capital punishment, there is the overwhelming international trend in support of abolition that can hardly be ignored. The Law Commission’s recent weighty report that favours giving up the death penalty, except in cases of terrorism, should also motivate the government into swift action. Apart from promoting the cause of a humane jurisprudence, a decision to do away with the death sentence could have a hugely positive impact on our international image.
(R.K. Raghavan is a former CBI Director and a graduate in criminal justice from the Temple University, Philadelphia.)
Sources: The Hindu
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