Why death penalty debates never end
The hanging of Yakub Memon, a chartered accountant found guilty of plotting the 1993 Mumbai blasts, sparked much outrage and kicked up considerable intellectual dust. Most of it revolved around banning the death penalty - as several countries have done already.
The retentionists - those supporting the need to have a death penalty - couldn't see eye to eye with the abolitionists who favoured scrapping it. They debated on television channels, newspapers and social media; by the water coolers and over cups of coffee. On Twitter and Facebook - the popular venues for the modern competitive sport of moral outrage - the debate often quickly descended into slanging matches and name calling.
That's not the way debates are expected to end. They are supposed to give us some clarity. The reason why debates around death penalty go on and on is that it's complex - there are many sets of people involved with conflicting needs, there are different timeframes, and unreliable data. The debates are around these five questions - 1) is it moral for a state to kill its citizens? 2) does death penalty stop crimes, 3) Does death penalty provide justice, 4) what about the risk of innocents getting killed and 5) practically speaking, does it help or hurt? As we will see, for each of these questions both sides have arguments that we cannot and should not dismiss. Added to that, the issues are interconnected.
In short, debates are more likely to generate sound, than light. But that doesn't mean there is no resolution either. We will come to that later.
Is it moral for the state to kill its citizens?
Abolitionists
It's immoral for the state to kill its own citizens. Every human life is valuable. Everyone has a fundamental right to life. A sovereign state's legitimacy is in upholding that right, and by undertaking to deliberately kill its own citizens it violates that right.
It's cruel, inhuman and barbaric to consciously, willingly and methodically kill another human being. By instinct, people feel so. Who doesn't feel ill at ease while reading about beheadings, stoning and even public hanging. Legal sanction and getting it done privately doesn't make it ethical.
When the state kills a person - even while being opposed to killing in general because human life is precious and killing is bad - it is hypocritical. In some countries, doctors administer lethal injections (because they say it is a less cruel way of killing). In effect, the state forces the doctors to break their oath that they will do no harm. A state doing such an inhuman, immoral act diminishes everyone - those who are involved in that process and the society at large.
The society should be better than the individual.
In the heart of their hearts, even the retentionists know that. That's why they use euphemism such as "he was hanged", "he was executed" when the act is no less than murder.
Retentionists
The abolitionist argument is based on the principle that everyone has a right to life. But we can't be selective about applying that principle. We don't always act as if human life is valuable. We don't always uphold a human being's right to life. We can potentially not kill hundreds of thousands of people in road accidents, if we limit the speed to 30kmph. But we don't do that. By not doing something it can, the state is in effect killing thousands of (forget the guilty people) innocent people. In practice, we make trade offs. One might argue that there is a difference between deliberately killing a human being, and a human being getting killed in an accident - but then think about this: if you know something kills, and still let it be, is it not deliberate?
Extending the analogy, suppose someone dies in an accident by not following the rules. Say, jumping the red light, or drunk driving. We instinctively blame the rule breaker for his death and not other factors. As long as it's legal, the same principle must apply to those who are guilty of heinous crimes that the state has said are punishable by death. It's not dehumanising. On the contrary, it assumes everyone is a moral being (and not a brute with no sense of morality).
Besides, from a state's perspective, you can't look at it just narrowly as just a single case. In framing policies, the state should look at not just the immediate fallout, but at long-term effects. And not just at one group, but all groups. The state's job is the welfare of all people in the long run. So, if killing a few guilty of heinous crimes sends out a strong message and deters others, the state is in fact upholding the right to live. (Let us come to the effectiveness of deterrence shortly). While "kill at no cost" may be a worthy value for an individual, for the state, saving two lives is better than one.
Does death penalty stop potential crimes?
Abolitionists
It doesn't. There is no valid evidence to show death penalty lowers murder rates. In the US, the states without death penalty have lower murder rates than those with death penalty. In a survey of criminologists, nearly nine out of ten said they didn't believe death penalty lowers murder rates.
We shouldn't compare effectiveness of death penalty against no punishment at all, but with the next most severe punishment, which is life sentence without parole. Studies show that death penalty is no more better at stopping crimes than life sentence without parole. In some cases of terrorism - in which individuals are prepared to give up life for a greater cause - this argument is fairly self-evident. What would deter them is a life sentence - a life wasted within the four walls.
In any case, deterrence, by itself, is not a sound principle. For, you can pick up an innocent person, foist a case, manufacture evidence, and sentence him to death to send a message to would-be criminals.
Retentionists
It does. Naci Moccan, an economics professor told The New York Times, he was personally opposed to death sentence. But his research showed that it had deterrent effect - each execution resulted in five fewer murders. Other studies show that anywhere between three and 18 lives are saved for every execution. It's logical: just as you can incentivise people to do more of an activity by better rewards, you can dis-incentivise them to do less of it by increasing the punishment.
A death penalty might not stop each and every heinous crime - no one is arguing that - but it reduces the number of lives lost to murders.
Does death penalty provide justice?
Abolitionists
What we call retributive justice, is just plain revenge. Justice enhances human beings by making something right. But revenge - for that's what it is - diminishes us. Why punish a death with death, when we don't punish a rape with rape, arson with arson, assault with assault? No one would call a rape or assault justice. A death sentence is not justice either. A civilised state shouldn't be doing that.
While it's true that sentences are given by those trained to be above revenge, surely, even they get swayed by public sentiment (or by the government stand, which is again influenced by public mood). One judge, while sentencing a man to death, said it was a case where the "collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty". Public sentiment - even when you call it collective conscience - is not always aligned with law or justice as mob behaviour and riots demonstrate.
Death is fast, death ends suffering. After death there is no regret or feeling sorry, which is one of the objectives of punishment. Justice is complete when the guilty realises the mistake, and reforms. Death takes that chance away.
Retentionists
Justice is in punishing the guilty in proportion to their crimes - it should neither be too much nor too little. Deliberate, brutal, inhuman, sadistic murders deserve the severest punishment. And that, clearly is a death sentence.
Abolitionists will have to make up their mind on what's more severe. Life sentence without parole (proposed as an alternative to death) or death penalty. If life sentence is less severe - why would they argue that it's a more effective deterrent than death. If life sentence is more severe than death, aren't abolitionists more cruel than retentionists?
Retribution can be seen as revenge in any form of punishment, not just death penalty. Sending people to jail, or imposing a huge fine for lesser crimes such as robbery or fraud can also be seen as revenge. Why is revenge bad in one case, but okay in another?
From the victim's perspective, retribution brings a closure. Not only emotional closure, but a contractual closure with the state - for bringing the guilty to justice is a part of social contract that needs to kept up by the state.
What if innocents are killed?
Abolitionists
The biggest problem with death penalty is that it cannot be reversed. Last year, in a famous case, a judge overturned the conviction of a 14-year-old boy who was accused of murdering two girls back in 1944 - only, he was already executed. According to one study, 4.1 per cent of the defendants sentenced to death in the US are innocent. There are any number of cases where the innocence of the accused came to light years later. Many probably never got exonerated - because there is no incentive to pursue investigation once it's closed. It should come as surprise - but legal system is not perfect. Abolishing death penalty is a fail-safe mechanism that any legal system badly needs.
The legal system doesn't operate out of vacuum. It's a part of the society. The justice that it can serve is impacted by the imperfections, inequities and biases that are in the society. The poor are often at a disadvantage because they can't afford the best lawyers to defend them. In an ideal world, the justice system should be above race, caste, religion, colour, wealth, social status. But the police, lawyers and judges are human beings after all, and the system is not above its own biases.
The risk of punishing an innocent person is too high to have a punishment as irreversable as death.
Retentionists
When something useful can potentially cause harm, we don't banish it, we have checks and balances.
The rarest of rare case principle is one check. The courts pass a death sentence only in the rarest of rare cases. And on the top of it, only a miniscule fraction - less than one percent - is actually killed. The system allows for appeals, re-appeals and the presidential pardon. These filters rule out the possibility of an innocent person getting killed. India is not the US.
Practically speaking, does it help, or hurt?
Abolitionists
It's expensive: death penalty takes more time to resolve and costs more, sucking up tax money. It clogs up court time, which could be used for other cases. There is more bang for the buck in life imprisonment compared with life imprisonment.
It also creates bad press for the state with issues around morality of the death penalty dominating conversations rather than the guilt of the convict. Sometime it even ends up generating sympathy for the guilty. A practical man would say, death penalty is simply not worth all the trouble, given that a life sentence will achieve pretty much the same thing. (For argument's sake, even if it achieves a little less than what death penalty does, it achieves it for far lower tangible and intangible costs).
Retentionists
It might be more expensive, it might clog up the courts with appeals/counter appeals, it might demand judges to hold court at 2am, but at the end of it all, it saves lives. What can be more practical than that!
-- xx --
We have heard many or all of these points over the past couple of weeks. The debates were not always civil - leaving a long trail of victims stung by sarcasm and assaulted by name-calling. Even after discounting for the outrage everyone feels about everything these days, it underlined how emotional the issue is.
Apart from emotions, the issue itself is complex. At one level, a lot of these angry debates took place between people who were arguing from different perspectives, different timeframes and different assumptions. At another, there were multiple strands and a lot of interweaving among them that made clarity elusive.
Now, take an abolitionist. He sees a man about to be hanged, sees that he is going to be killed, murdered, and finds it hard to stomach the deliberateness of it all. You get into argument over drinks with a friend, the argument gets out of hand, you start shouting at each other, your ego gets severely hurt, you get enraged, pull out your gun and shoot your friend in one moment of insanity. That's perfectly understandable. But how could anyone commit a murder deliberately - like a bureaucrat arranging a set of files inside his box - and how could others support that act and even go as far as to celebrate it? But a retentionist doesn't see that alone. He imagines a series of events, one causing the other - of the well laid plans thrown into the dustbin, of the last minute jitters caused by an image of the gallows, of people's risk perceptions changing - and most importantly, lives saved. And when retentionists are angry at abolitionists, they are angry for the same reason as why abolitionists are angry at retentionists: don't they value human life? As they argue, they get more and more entrenched in their own positions and starts calling each other names. The abolitionists are looking at here and now, and the retentionists, there and after.
It could be the other way too. The retentionist sees a guilty man getting punished and justice being served. The abolitionist's mind, however, races forward. He thinks of a situation where an innocent man gets killed, and there is no going back. And he says, this is not what a civilised society must have - the possibility of an innocent man getting deliberately killed. The retentionist sees what's before his eyes, and the abolitionist sees what could happen. The retentionist - looking at here and now - is angry. He says, do you mean Yakub Memon is not guilty? If you say "yes", you are out of your mind. If you say "no", why bring this up now?
Sometimes, it's also about which question you are most concerned about. Take the headlines on the papers the next day. The Hindu said "Yakub Memon hanged on his birthday". The Times of India said "Night without end; Death at dawn". The Indian Express: "And they hanged Yakub Memon". All these highlight the value of life - one by contrasting it with birth (an occasion to celebrate life itself), another by contrasting dawn (a beginning, suggesting birth again) and death; and yet another by consciously disassociating with the killing "they did it". Many found these offensive - not because they didn't value human life - but they felt the headlines ignored what was even more important at that point: retributive justice. After all, the state didn't hang him for the heck of it. Yakub was guilty, and he was convicted in a fair trial for his heinous crimes.
And then there are fights among retentionists on whom to leave out. A retentionist makes a count of people who were actually killed, people who were sentenced to death, calculates some ratios, compares them with another country, and feels very satisfied. These are as dilute as the substance in a homeopathic medicine, says. But then, his ideological ally is not so happy. The rarest of rare principle makes the death sentence somewhat arbitrary -- and doesn't treat all deaths as equal. For a victim, a death is a death and the closure doesn't happen till there is retribution. There is no objective way to say one killing is worse than another. Arguments around this too can drag on and on.
That extends to the other "objective" stuff too. A cursory reading of data is unlikely to make us any wiser. For instance, men face far more death penalties compared to their share in population. Does that mean - as some might ask - is the legal system biased against men or is it simply that they tend to commit more heinous crimes? Even a thorough look at numbers seldom improves the situation. There is still no conclusive study on the impact of death penalty on crime rates - some say it reduces crimes, some say it doesn't have an impact. A few others say, it increases crime. It's like the accountant, who, when asked what's four plus four, replied "what do you want it to be?"
In my own case, my heart says death penalty should be abolished. But my head is still not convinced. The answer is not simple. Like many other things in life.
Perhaps, some time in the future, when we have found better ways to stop crime, when we have made the world much safer - using technology, by figuring out better ways to organise our society, by building better institutions and by the natural process of evolution - the answer might seem obvious and self evident. In my case, my head would then completely agree with my heart.
There is a role for hands too. The future in which death penalty would no longer be necessary is for us to build. How do we take our country - and our world - from here to there? What kind of tools must we use? What kind of institutions must we have? What should our focus be? I don't know what the answers are. But, I am convinced of this. The debate should move from whether we need death penalty, to what we should do to ensure we wouldn't need death penalty - ever.